UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:20-cv-00835-JGB-SHK

Melissa Ahlman et al v. Don Barnes Assigned to: Judge Jesus G. Bernal Referred to: Magistrate Judge Shashi H. Kewalramani Related Case: 5:18-cv-02604-JGB-SHK Case in other court: Ninth Circuit, 20-22668
Ninth Circuit, 20-55568 Cause: 42:1983 Civil Rights Act

Date Filed: 04/30/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Melissa Ahlman on behalf of themselves and all others similarly situated

represented by Mitchell A Kamin Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643 424-332-4800 Fax: 424-332-4749 Email: mkamin@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643 424-332-4754 Fax: 415-591-6091 Email: alewis@cov.com ATTORNEY TO BE NOTICED

Amia L Trigg Covingon and Burling LLP 850 10th Street NW Washington, DC 20001 202-662-5906 Fax: 202-778-5906 Email: atrigg@cov.com ATTORNEY TO BE NOTICED

Brittany L. Benjamin Covington and Burling LLP 1999 Avenue of the Stars Suite 3500

Los Angeles, CA 90067 434-332-4790 Fax: 424-332-4749 Email: bbenjamin@cov.com ATTORNEY TO BE NOTICED
Carl Takei American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: ctakei@aclu.org ATTORNEY TO BE NOTICED
Cassandra Stubbs American Civil Liberties Union Capital Punishment Project 201 West Main Street Suite 402 Durham, NC 27701 919-688-4605 Fax: 919-682-5961 Email: cstubbs@aclu.org ATTORNEY TO BE NOTICED
Clara Spera American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2633 Fax: 212-549-2649 Email: cspera@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis American Civil Liberties Union Foundation 201 West Main Street Suite 402 Durham, NC 27701 919-433-8521 Email: cbecker@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

John Clay Washington Schonbrun Seplow Harris Hoffman and Zeldes LLP 11543 West Olympic Boulevard Los Angeles, CA 90064 310-396-0731 Fax: 310-399-7040 Email: jwashington@sshhzlaw.com ATTORNEY TO BE NOTICED
Joseph Longley American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 202-548-6602 Email: jlongley@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen Covington and Burling LLP 850 - 10th Street NW Washington, DC 20001 202-662-5222 Fax: 202-778-5222 Email: lcohen@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook Covington and Burling LLP 850 - 10th Street NW Washington, DC 20001 202-662-5953 Fax: 202-778-5953 Email: mcook@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign American Civil Liverties Union Foundation 201 West Main Street Suite 402 Durham, NC 27701 919-433-8520

Email: oensign@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman Schonbrun Seplow Harris and Hoffman LLP Irvine School of Law Civil Rights Litigation Clinic 200 Pier Avenue Suite 226 Hermosa Beach, CA 90254 310-717-7373 Fax: 310-399-7040 Email: hoffpaul@aol.com ATTORNEY TO BE NOTICED
Peter J Eliasberg ACLU of Southern California 1313 West 8th Street Suite 200 Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5299 Email: peliasberg@aclusocal.org ATTORNEY TO BE NOTICED
Sarah A. Hinger American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212-519-7882 Fax: 212-549-2654 Email: shinger@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 202-904-7727 Email: strivedi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby

Plaintiff
Daniel Kauwe on behalf of themselves and all others similarly situated

Covington and Burling LLP 850 - 10th Street NW Washington, DC 20001 202-662-5238 Fax: 202-778-5238 Email: sgrigsby@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415-343-0769 Fax: 415-395-0950 Email: zbrennan-krohn@aclu.org ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Michael Seif on behalf of themselves and all others similarly situated

Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Javier Esparza on behalf of themselves and all others similarly situated

Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington

(See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Pedro Bonilla on behalf of themselves and all others similarly situated

Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address)

Plaintiff

PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED

Cynthia Campbell on behalf of themselves and all others similarly situated

represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address)

Plaintiff
Monique Castillo on behalf of themselves and all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address)

Plaintiff
Mark Trace on behalf of themselves and all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg

(See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address)

Plaintiff
Cecibel Caridad Ortiz on behalf of themselves and all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address)

ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman Schonbrun Seplow Harris and

Plaintiff
Don Wagner on behalf of themselves and all others similarly situated

Hoffman LLP 200 Pier Avenue Suite 226 Hermosa Beach, CA 90254 310-717-7373 Fax: 310-399-7040 Email: hoffpaul@aol.com ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin

(See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman

V.
Defendant
Don Barnes in his official capacity as Sheriff of Orange County, California

(See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by D Kevin Dunn Orange County Counsels Office 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92701 714-834-3300 Fax: 714-834-2359 Email: kevin.dunn@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kayla Nicole Watson Office of the County Counsel County of Orange 333 West Santa Ana Boulevard

Defendant Orange County

Suite 407 P O Box 1379 Santa Ana, CA 92702-1379 714-834-3300 Fax: 714-834-2359 Email: kayla.watson@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura D Knapp Orange County Counsel 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92701 714--834-6020 Fax: 714-834-2359 Email: laura.knapp@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sorgen Leeds Orange County Counsels Office 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92702 714-834-3300 Fax: 714-834-2359 Email: rebecca.leeds@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by D Kevin Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kayla Nicole Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura D Knapp

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sorgen Leeds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 04/30/2020
04/30/2020

#

Docket Text

1 PETITION for Writ of Habeas Corpus by a Person in State Custody (28 USC 2254), Receipt No. BCACDC-26288526 for $5 filing fee, filed by Plaintiffs Cynthia Campbell, Michael Seif, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, Mark Trace, Melissa Ahlman, Javier Esparza, Don Wagner, Pedro Bonilla. (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, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA) (Attorney Mitchell A Kamin added to party Melissa Ahlman(pty:pla), Attorney Mitchell A Kamin added to party Pedro Bonilla(pty:pla), Attorney Mitchell A Kamin added to party Cynthia Campbell(pty:pla), Attorney Mitchell A Kamin added to party Monique Castillo(pty:pla), Attorney Mitchell A Kamin added to party Javier Esparza(pty:pla), Attorney Mitchell A Kamin added to party Daniel Kauwe(pty:pla), Attorney Mitchell A Kamin added to party Cecibel Caridad Ortiz(pty:pla), Attorney Mitchell A Kamin added to party Michael Seif(pty:pla), Attorney Mitchell A Kamin added to party Mark Trace(pty:pla), Attorney Mitchell A Kamin added to party Don Wagner(pty:pla))(Kamin, Mitchell) (Entered: 04/30/2020)

2 CIVIL COVER SHEET filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 04/30/2020)

04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020
04/30/2020

3 CERTIFICATE of Interested Parties filed by Plaintiffs All Plaintiffs, (Kamin, Mitchell) (Entered: 04/30/2020)
4 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus,,,,, 1 filed by PLAINTIFFS Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 04/30/2020)
5 NOTICE OF REFERENCE to a U.S. Magistrate Judge. This case has been assigned to the calendar of the Honorable District Judge Percy Anderson and referred to Magistrate Judge Gail J. Standish, who is authorized to consider preliminary matters and conduct all further hearings as may be appropriate or necessary. Pursuant to Local Rule 83-2.4, the Court must be notified within five (5) days of any address change. See notice for additional details. (lh) (Entered: 04/30/2020)
6 NOTICE OF DEFICIENCIES in Attorney Case Opening. The following error(s) was found: Other error(s) with document(s): A temporary restraining order (TRO) flag was indicated, but no TRO document was filed. (lh) (Entered: 04/30/2020)
7 NOTICE OF PRO HAC VICE APPLICATION DUE for NonResident Attorney Stacey Grigsby. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
8 NOTICE OF PRO HAC VICE APPLICATION DUE for NonResident Attorney Olivia Ensign. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64)

04/30/2020 04/30/2020 04/30/2020

and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
9 NOTICE OF PRO HAC VICE APPLICATION DUE for NonResident Attorney Cristina Becker. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
10 NOTICE OF PRO HAC VICE APPLICATION DUE for NonResident Attorney Carl Takei. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
11 NOTICE OF PRO HAC VICE APPLICATION DUE for NonResident Attorney Somil Trivedi. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this

04/30/2020
04/30/2020 05/01/2020 05/01/2020 05/01/2020

form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)

12 NOTICE OF PRO HAC VICE APPLICATION DUE for NonResident Attorney Clara Spera. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)

13 NOTICE OF DEFICIENCIES in Attorney Case Opening RE: Summons Request, 4 . The following error(s) was found: Other error(s) with document(s): Summons are Not issued for Habeas Petitions. Court will order service as appropriate. (lh) (Entered: 04/30/2020)

14 RESPONSE filed by Pro Hac Vice attorney Carl Takei on behalf of Plaintiffs Melissa Ahlman, et al. RE: Notice of Filing Fee Due. PHV fee n/a. Attorney is a licensed California attorney, admitted to this Court, is currently Active and in good standing. (Thrasher, Lupe) (Entered: 05/01/2020)

NOTICE of Related Case(s) filed by Plaintiffs Melissa Ahlman,

15

Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier

Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif,

Mark Trace, Don Wagner. Related Case(s): 5:20-cv-00768; 19:cv-

01546 (Kamin, Mitchell) (Entered: 05/01/2020)

16 MINUTE ORDER IN CHAMBERS - COURT ORDER by Judge Percy Anderson. In light of the significant public policy issues involved in this action, the Court orders all of the parties in this action to meet and confer prior to the filing of all applications and motions for injunctive relief notwithstanding the exception in Local Rule 7-3, which otherwise exempts applications and motions for injunctive relief from the conference of counsel

05/01/2020 05/01/2020 05/04/2020
05/04/2020 05/04/2020 05/04/2020

requirements. Prior to the filing of any application or motion seeking injunctive relief, the parties in this action shall contact opposing counsel to discuss thoroughly, the substance of any such contemplated application or motion, any potential resolution, and whether the parties can agree on an appropriate briefing schedule. All Notices of Motions and Applications seeking injunctive relief shall summarize counsel's pre-filing efforts to discuss these matters. (mrgo) (Entered: 05/01/2020)
17 STANDING ORDER by Judge Percy Anderson. READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. (See document for details) (mrgo) (Entered: 05/01/2020)
18 NOTICE OF CLERICAL ERROR: Upon further review, a determination has been made that this case is not appropriate for the issuance of a report and recommendation by a Magistrate Judge pursuant to General Order 05-07. Therefore, all filings should be directed to Judge Percy Anderson for review. The case will now reflect the initials of the transferee Judge 8:20-cv-00835 PA(GJSx). (rn) (Entered: 05/01/2020)
19 NOTICE OF DEFICIENCIES in Request to Issue Summons RE: Summons Request, 4 . The following error(s) was found: The caption of the summons must match the caption of the complaint verbatim. If the caption is too large to fit in the space provided, enter the name of the first party and then write see attached.Next, attach a face page of the complaint or a second page addendum to the Summons. The summons cannot be issued until this defect has been corrected. Please correct the defect and re-file your request. (lh) (Entered: 05/04/2020)
20 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus,,,,, 1 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/04/2020)
21 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus,,,,, 1 filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/04/2020)
26 21 DAY Summons Issued re Petition for Writ of Habeas Corpus, 1 as to defendant Orange County, California. (mrgo) (Entered: 05/05/2020)

05/04/2020 05/05/2020 05/05/2020
05/05/2020 05/05/2020

27 21 DAY Summons Issued re Petition for Writ of Habeas Corpus, 1 as to defendant Don Barnes. (mrgo) (Entered: 05/05/2020)
22 APPLICATION of Non-Resident Attorney Clara Spera to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333630) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace,
Don Wagner. (Attachments: # 1 Declaration Clara Spera, # 2 Declaration Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
23 APPLICATION of Non-Resident Attorney Cristina M. Becker Ellis to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333703) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1
Declaration of Cristina Becker, # 2 Declaration of Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
24 APPLICATION of Non-Resident Attorney Olivia Harper Ensign to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333761) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration of Olivia Ensign, # 2 Declaration of Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
25 APPLICATION of Non-Resident Attorney Somil B. Trivedi to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier

05/05/2020
05/05/2020 05/05/2020 05/05/2020

Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333835) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration of Somil Trivedi, # 2 Declaration of Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
28 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Olivia Harper Ensign to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, 24 , APPLICATION of Non-Resident Attorney Cristina M. Becker Ellis to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Tra 23 . The following error(s) was/were found: Local Rule 83-2.1.3.3(a) Application not complete: state and/or federal courts to which the applicant has been admitted are not listed. Application is incomplete. State or federal courts where attorneys are admitted is blank. DJ and MJ initials missing. (Thrasher, Lupe) (Entered: 05/05/2020)
29 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Clara Spera to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagne 22 , APPLICATION of NonResident Attorney Somil B. Trivedi to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don 25 . The following error(s) was/were found: DJ and MJ initials missing. (Thrasher, Lupe) (Entered: 05/05/2020)
30 ORDER by Judge Percy Anderson: granting 22 Non-Resident Attorney Clara Spera APPLICATION to Appear Pro Hac Vice on behalf of All Plaintiffs, designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)
31 ORDER by Judge Percy Anderson: granting 23 Non-Resident Attorney Cristina M. Becker Ellis APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Plaintiffs Melissa Ahlman, Pedro

05/05/2020 05/05/2020 05/06/2020
05/07/2020 05/07/2020 05/08/2020

Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner., designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)

32 ORDER by Judge Percy Anderson: granting 24 Non-Resident Attorney Olivia Harper Ensign APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner, designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)

33 ORDER by Judge Percy Anderson: granting 25 Non-Resident Attorney Somil Trivedi APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner., designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)

ORDER RE TRANSFER PURSUANT TO GENERAL ORDER

34

19-03-Related Case- filed. Related Case No: 5:18-cv-02604

JGB(SHKx). Case transferred from Judge Percy Anderson and

Magistrate Judge Gail J. Standish to Judge Jesus G. Bernal and

Magistrate Judge Shashi H. Kewalramani for all further

proceedings. The case number will now reflect the initials of the

transferee Judge 8:20-cv-00835 JGB(SHKx). Signed by Judge

Jesus G. Bernal (rn) (Entered: 05/06/2020)

NOTICE of Related Case(s) filed by Defendants Don Barnes,

35

Orange County, California. With Exhibit and Certificate of

Service Related Case(s): 8:19-cv-00258-JVS-KES (Attachments:

# 1 Exhibit A)(Dunn, D) (Entered: 05/07/2020)

OBJECTIONS to Transferring Case purs GO 19-03 (Related 36
Case)(CV-34), 34 , Notice of Related Case(s), 15 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/07/2020)

37 PROOF OF SERVICE Executed by Plaintiff Cynthia Campbell, Michael Seif, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, Mark Trace, Melissa Ahlman, Javier Esparza, Don Wagner, Pedro Bonilla, upon Defendant Don Barnes served on 5/6/2020, answer due 5/27/2020. Service of the Summons and Complaint were executed upon LEANA GUZMAN,

05/08/2020 05/09/2020 05/11/2020 05/11/2020

SECRETARY/AUTHORIZED TO ACCEPT SERVICE in compliance with statute not specified by personal service.Original Summons NOT returned. (Kamin, Mitchell) (Entered: 05/08/2020)
38 PROOF OF SERVICE Executed by Plaintiff Cynthia Campbell, Michael Seif, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, Mark Trace, Melissa Ahlman, Javier Esparza, Don Wagner, Pedro Bonilla, upon Defendant Orange County, California served on 5/6/2020, answer due 5/27/2020. Service of the Summons and Complaint were executed upon DORA GUILLEN, DEPUTY CLERK/AUTHORIZED TO ACCEPT SERVICE in compliance with statute not specified by personal service.Original Summons NOT returned. (Kamin, Mitchell) (Entered: 05/08/2020)

39

OBJECTIONS to Notice of Related Case(s) 35 -- Plaintiffs'

Objection to Defendants' Notice of Related Case, filed by

Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell,

Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad

Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments:

# 1 Exhibit A to Plaintiffs' Objection to Defendants' Notice of

Related Case, # 2 Exhibit B to Plaintiffs' Objection to Defendants'

Notice of Related Case)(Kamin, Mitchell) (Entered: 05/09/2020)

40 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Service of Summons and Complaint Returned Executed (21 days), 37 , Service of Summons and Complaint Returned Executed (21 days) 38 . The following error(s) was/were found: The judge's initials are incorrect and should be JGB(SHKx). SACV20-835-JGB(SHKx). In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (twdb) (Entered: 05/11/2020)

EX PARTE APPLICATION for Temporary Restraining Order as

41

to Implement Protections Against COVID-19 for Individuals Held

at the OC Jail filed by Plaintiffs Melissa Ahlman, Pedro Bonilla,

Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel

Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don

Wagner. (Attachments: # 1 Memorandum, # 2 Proposed

Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit

05/11/2020 05/12/2020 05/12/2020

D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit BB, # 31 Exhibit CC, # 32 Exhibit DD, # 33 Exhibit EE, # 34 Exhibit FF, # 35 Exhibit GG, # 36 Exhibit HH, # 37 Exhibit II, # 38 Exhibit JJ, # 39 Exhibit KK, # 40 Exhibit LL, # 41 Exhibit MM, # 42 Exhibit NN) (Kamin, Mitchell) (Entered: 05/11/2020)
42 NOTICE OF MOTION AND MOTION to Certify Class filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Memorandum, # 2 Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y) (Kamin, Mitchell) (Entered: 05/11/2020)
43 SCHEDULING NOTICE by Judge Jesus G. Bernal. On May 11, 2020, Plaintiffs file an Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction. The Court hereby orders Defendants to file a response no later than Thursday, May 14, 2020. Thereafter, the Court will issue a hearing date for oral argument. IT IS SO ORDERED THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 05/12/2020)
44 Opposition In Opposition re: EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against
COVID-19 for Individuals Held at the OC Jail 41 With Supporting Declarations, Exhibits and Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Memorandum MPA, # 2 Declaration Martin Ramirez, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Declaration Joseph Balicki, # 11 Exhibit A, # 12 Exhibit B, # 13 Exhibit C, # 14 Exhibit D, # 15 Declaration C. Hsien Chiang, # 16 Exhibit A, # 17 Exhibit B, # 18 Exhibit C, # 19 Exhibit D, # 20 Exhibit E,

05/12/2020 05/12/2020 05/12/2020 05/12/2020 05/13/2020
05/14/2020

# 21 Exhibit F, # 22 Declaration D. Kevin Dunn)(Dunn, D) (Entered: 05/12/2020)
45 REQUEST FOR JUDICIAL NOTICE In Support of Opposition to Plaintiffs Ex Parte Application for Temporary Restraining Order and/or Motion for Preliminary Injunction [ECF 41].With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Dunn, D) (Entered: 05/12/2020)
46 Evidentiary Objections In Opposition re: EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC
Jail 41 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/12/2020)
47 Opposition In Opposition re: NOTICE OF MOTION AND MOTION to Certify Class 42 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Memorandum MPA)(Dunn, D) (Entered: 05/12/2020)
48 Evidentiary Objections In Opposition re: NOTICE OF MOTION AND MOTION to Certify Class 42 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/12/2020)
49 REPLY EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for
Individuals Held at the OC Jail 41 Reply in Support of Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/13/2020)
50 REPLY NOTICE OF MOTION AND MOTION to Certify Class 42 -- Reply in Support of Motion for Provisional Class Certification filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Exhibit A - Declaration of David Mejia Sanchez, # 2 Exhibit B - Declaration of Jeffrey Davis, # 3 Exhibit

05/14/2020 05/15/2020 05/16/2020 05/16/2020

C- Declaration of Jaime Herrera, # 4 Exhibit D - Declaration of Melissa Ahlman, # 5 Exhibit E - Declaration of Mark Trace, # 6
Exhibit F - Declaration of Cynthia Campbell, # 7
Exhibit G - Declaration of Monique Castillo)(Kamin, Mitchell) (Entered: 05/14/2020)
51 SCHEDULING NOTICE AND ORDER by Judge Jesus G. Bernal. The Court hereby sets a telephonic hearing on Tuesday, May 19, 2020, at 9:00 a.m., to hear argument on Plaintiffs' ExParte Application for Temporary Restraining Order (Dkt. No. 41) and Motion for Provisional Class Certification (Dkt. No. 42). The courtroom deputy clerk shall e-mail the attorneys of record the telephone conference number 24 hours before the hearing date. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 05/14/2020)
52 APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26461517) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Benjamin, Brittany) (Entered: 05/15/2020)
53 RESPONSE filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagnerto Objection/Opposition (Motion related), 46 re: Defendants' Evidentiary Objections to Plaintiffs' Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kamin, Mitchell) (Entered: 05/16/2020)
54 RESPONSE filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagnerto Objection/Opposition (Motion related) 48 re: Defendants' Evidentiary Objections to Plaintiffs' Motion to Certify

05/18/2020 05/18/2020 05/18/2020
05/18/2020

Class (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kamin, Mitchell) (Entered: 05/16/2020)
55 SCHEDULING NOTICE AND ORDER by Judge Jesus G. Bernal. The Court hereby changes the time of the telephonic hearing on Plaintiffs' Ex-Parte Application for Temporary Restraining Order (Dkt. No. 41) and Motion for Provisional Class Certification (Dkt. No. 42) on Tuesday, May 19, 2020, from 9:00 a.m. to 11:00 a.m. The courtroom deputy clerk shall e-mail the attorneys of record the telephone conference number 24 hours before the hearing date. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (npo) TEXT ONLY ENTRY (Entered: 05/18/2020)
56 STANDING ORDER upon filing of the complaint by Judge Jesus G. Bernal. (ima) (Entered: 05/18/2020)
57 SUPPLEMENT to EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19
for Individuals Held at the OC Jail 41 -- Supplemental Evidence in Support of Plaintiffs Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Exhibit A - Supplemental Declaration of Melissa Ahlman, # 2 Exhibit B - Supplemental Declaration of Charles Lucious, # 3 Exhibit C - Supplemental Declaration of David Mejia Sanchez, # 4 Exhibit D - Supplemental Declaration of Michael Seif, # 5 Exhibit E - Supplemental Declaration of Donald Timmons, # 6 Exhibit F - Supplemental Declaration of Vernell White)(Kamin, Mitchell) (Entered: 05/18/2020)
58 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don 52 . The following error(s) was/were found: Local Rule 83-2.1.3.3(b) Proposed order not attached. Attorney Brittany L. Benjamin is not admitted to the Central District of California and cannot act as local counsel. Attorney was notified on 5/1/20 of her status with this Court. (Thrasher, Lupe) (Entered: 05/18/2020)

05/18/2020
05/19/2020 05/19/2020 05/19/2020 05/20/2020 05/26/2020

59 APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26483389) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 05/18/2020)

60 ORDER GRANTING APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26483389) and designating Britanny L Benjamin as local counsel 59 by Judge Jesus G. Bernal (lc) (Entered: 05/19/2020)

61 DECLARATION of Joseph Balicki In Support of Opposition to EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held

at the OC Jail 41 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/19/2020)

62 MINUTES OF Telephonic Hearing on: (1) Motion for Provisional Class Certification 42 and (2) Ex-Parte Application for Temporary

Restraining Order 41 held before Judge Jesus G. Bernal: Counsel make their appearances. The Court hears argument and takes the matters under submission. Court Reporter: Phyllis A. Preston. (lc) (Entered: 05/19/2020)

DECLARATION of Dr. Joe Goldenson In support of EX PARTE

63

APPLICATION for Temporary Restraining Order as to Implement

Protections Against COVID-19 for Individuals Held at the OC

Jail 41 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Stubbs, Cassandra) (Entered: 05/20/2020)

64 STIPULATION Extending Time to Answer the complaint as to Don Barnes answer now due 6/3/2020; Orange County, California

05/26/2020 05/27/2020 05/27/2020 05/28/2020 05/28/2020 05/28/2020

answer now due 6/3/2020, re Petition for Writ of Habeas Corpus,,,,, 1 filed by Defendants Don Barnes; Orange County, California.(Watson, Kayla) (Entered: 05/26/2020)

MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: ORDER

65

1) GRANTINGINPART and DENYINGINPART Plaintiffs

Application for Temporary Restraining Order or Preliminary

Injunction 41 ; and (2) GRANTING Plaintiffs Motion for Provisional Class Certification 42 . (SEE DOCUMENT FOR SPECIFICS AND LIST OF RELIEF AND OTHER INFORMATION THEREIN). (lc) (Entered: 05/26/2020)

66 EX PARTE APPLICATION to Stay Case pending Appeal re May 26, 2020 Order Order (1) GRANTINGINPART and DENYINGINPART Plaintiffs Application [ECF 65] With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration Kayla N. Watson, # 3 Declaration C. Hsien Chiang, M.D., # 4 Declaration Joseph Balicki, # 5 Proposed Order) (Watson, Kayla) (Entered: 05/27/2020)

67 REQUEST FOR JUDICIAL NOTICE re EX PARTE APPLICATION to Stay Case pending Appeal re May 26, 2020 Order Order (1) GRANTINGINPART and DENYINGINPART Plaintiffs Application [ECF 65] With Certificate of Service 66 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Exhibit A)(Watson, Kayla) (Entered: 05/27/2020)

68 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Don Barnes, Orange County, California. Appeal of

Order on Motion to Certify Class Action, 65 . (Appeal Fee $505 Fee Paid, Receipt No. ACACDC-26597999.) (Watson, Kayla) (Entered: 05/28/2020)

69 TRANSCRIPT ORDER re: Court of Appeals case number TBD, as to Defendants Don Barnes, Orange County, California for Court Reporter. Court will contact Simon Perng at simon.perng@coco.ocgov.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Watson, Kayla) (Entered: 05/28/2020)

70 MEMORANDUM in Opposition to EX PARTE APPLICATION to Stay Case pending Appeal re May 26, 2020 Order Order (1)

05/28/2020 06/02/2020 06/03/2020 06/03/2020 06/04/2020
06/09/2020

GRANTINGINPART and DENYINGINPART Plaintiffs Application [ECF 65] With Certificate of Service 66 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/28/2020)
71 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 2055568 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 68 as to defendants Don Barnes, Orange County, California. (twdb) (Entered: 05/29/2020)
72 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order DENYING Defendants Ex Parte Application to Stay Case 66 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 06/02/2020)
73 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendants Don Barnes, Orange County, California. Motion set for hearing on 7/13/2020 at 09:00 AM before Judge Jesus G. Bernal. (Leeds, Rebecca) (Entered: 06/03/2020)
74 REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION AND MOTION to Dismiss Case 73 filed by Defendants Don Barnes, Orange County, California. (Leeds, Rebecca) (Entered: 06/03/2020)
75 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Don Barnes, Orange County, California. CCA # 20-55568. We have received appellants' supplemented emergency motion at Docket Entry No. 8 seeking to stay the district court's May 26, 2020 order pending resolution of this appeal. Appellees response to the emergency motion is due June 8, 2020. Appellants' optional reply is due June 10, 2020. To the extent that appellants' emergency motion requests an immediate stay of the district court's May 26, 2020 order pending resolution of the emergency motion, the request is denied. (car) (Entered: 06/04/2020)
76 TRANSCRIPT for proceedings held on 5/19/20. Court Reporter: Phyllis Preston, stenojag@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 6/30/2020. Redacted Transcript Deadline set for 7/10/2020.

06/09/2020 06/12/2020 06/12/2020
06/12/2020

Release of Transcript Restriction set for 9/8/2020. (Preston, Phyllis) (Entered: 06/09/2020)
77 NOTICE OF FILING TRANSCRIPT filed for proceedings 5/19/20 re Transcript 76 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Preston, Phyllis) TEXT ONLY ENTRY (Entered: 06/09/2020)
78 NOTICE of First Amended Complaint filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 06/12/2020)
79 First AMENDED COMPLAINT against Defendants All Plaintiffs amending Petition for Writ of Habeas Corpus,,,,, 1 , filed by Plaintiffs Cynthia Campbell, Monique Castillo, Daniel Kauwe, Melissa Ahlman, Javier Esparza, Pedro Bonilla (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-A, # 9 Exhibit H-B, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O,
# 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG, # 35 Exhibit HH, # 36 Exhibit II, # 37 Exhibit JJ, # 38 Exhibit KK, # 39 Exhibit LL, # 40 Exhibit MM, # 41 Exhibit NN, # 42 Exhibit OO)(Kamin, Mitchell) (Entered: 06/12/2020)
80 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Don Barnes, Orange County, California. CCA # 20-55568. Appellants' emergency motion to stay the district court's May 26, 2020 order is denied. A written order giving the courts reasoning will follow in due course. Appellants' emergency motion to supplement the record on appeal is denied. However, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. [See document for more details.] (mat) (Entered: 06/15/2020)

06/15/2020 06/16/2020 06/17/2020
06/18/2020 06/19/2020

81 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Case 73 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 06/15/2020)

82 Notice of Withdrawal of Motion to Dismiss Case 73 , Request for Judicial Notice 74 filed by Defendants Don Barnes, Orange County, California. (Leeds, Rebecca) (Entered: 06/16/2020)

84 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55568. We deny the motion to stay, but remand for the limited purpose of allowing the district court to consider whether changed circumstances justify modifying or dissolving the injunction. Accordingly, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. In the event such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate. The previously established briefing schedule remains in effect. IT IS SO ORDERED. [See document for all complete details.] (mat) (Entered: 06/19/2020)

NOTICE OF MOTION AND MOTION to Expedite Discovery --

83

Plaintiffs' Notice of Motion and Motion for Limited Expedited

Discovery; Memorandum of Points and Authorities, filed by

Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell,

Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad

Ortiz, Michael Seif, Mark Trace, Don Wagner. Motion set for

hearing on 6/29/2020 at 01:00 PM before Judge Jesus G. Bernal.

(Attachments: # 1 Exhibit A, # 2 Proposed Order) (Kamin,

Mitchell) (Entered: 06/18/2020)

85 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to

Expedite Discovery 83 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not

06/19/2020 06/22/2020 06/23/2020 06/23/2020 06/24/2020

take any action in response to this notice unless and until the Court directs you to do so. (twdb) (Entered: 06/19/2020)
EX PARTE APPLICATION to Withdraw Preliminary Injunction 86
Order on Motion to Certify Class Action, 65 filed by Defendants Don Barnes, Orange County. (Attachments: # 1
Memorandum of Points & Authorities in Support of Motion to Dissolve Preliminary Injunction, # 2 Declaration of Kayla N. Watson, # 3 Declaration of Dr. Chiang, # 4 Declaration of Cpt. Ramirez, # 5 Declaration of Cpt. Von Nordheim, # 6 Declaration of Cpt. Rich, # 7 Declaration of Sgt. Hennessey, # 8 Declaration E. Winger) (Watson, Kayla) (Entered: 06/19/2020)
87 NOTICE OF LODGING filed June 22, 2020 with Certificate of Service re EX PARTE APPLICATION to Withdraw Preliminary
Injunction Order on Motion to Certify Class Action, 65 86
(Attachments: # 1 Proposed Order)(Watson, Kayla) (Entered: 06/22/2020)
88 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS RE: Deficiency in Electronically Filed Documents (G-112A) optional html form,, 85 by Deputy Clerk of Court. The document is accepted as filed. The Court hereby resets the hearing date to July 20, 2020, at 9:00 a.m. A separate ex parte application must be filed if the parties wish to advance the hearing date. (iva) (Entered: 06/23/2020)
89 EX PARTE APPLICATION to Shorten Time for Hearing on to 6/29/2020 -- Plaintiffs Ex Parte Application to Immediately Set Hearing Date to June 29, 2020 on Plaintiffs Motion for Limited Expedited Discovery; or in the Alternative, to Set Expedited Hearing for Plaintiffs Motion, filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Memorandum in Support of Ex Parte Application, # 2 Exhibit A, # 3 Proposed Order) (Kamin, Mitchell) (Entered: 06/23/2020)
90 DECLARATION of C. Hsien Chiang, M.D. In Support of EX PARTE APPLICATION to Withdraw Preliminary Injunction
Order on Motion to Certify Class Action, 65 86 With

06/24/2020 06/26/2020 06/26/2020
06/29/2020 06/29/2020

Certificate of Service filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 06/24/2020)

Opposition in Opposition to re: NOTICE OF MOTION AND

91

MOTION to Expedite Discovery -- Plaintiffs' Notice of Motion

and Motion for Limited Expedited Discovery; Memorandum of

Points and Authorities, 83 , EX PARTE APPLICATION to Shorten Time for Hearing on to 6/29/2020 -- Plaintiffs Ex Parte Application to Immediately Set Hearing Date to June 29, 2020 on Plaintiffs Motion for Limited Expedited Discovery; or in the Alternative, to Set Expedited Hea 89 With Certificate of Service filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 06/24/2020)

92 ANSWER to Amended Complaint/Petition,,,, 79 With Certificate of Service filed by Defendants Don Barnes, Orange County.(Leeds, Rebecca) (Entered: 06/26/2020)

MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order (1)

93

DENYING Defendants Ex Parte Application to Dissolve

Injunction (Dkt. No. 86 ); (2) GRANTING Plaintiffs Motion

for Expedited Discovery (Dkt. No. 83 ); (3) DENYING Plaintiffs Ex Parte Application to Shorten Time (Dkt. No. 89 ); and (4) VACATING the July 20, 2020 Hearing. ORDERS that by July 8, 2020, (1) Defendants will serve responses to all outstanding written discovery, (2) the parties will agree on a date for inspection of the Jail to be no later than July 15, 2020, and (3) the parties will agree on a time and date for the video depositions of Erin Winger, Dr. C. Hsien Chiang, and Commander Joseph Balicki to be no later than July 15, 2020; SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 06/26/2020)

94 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Don Barnes, Orange County. Appeal of Order on Motion to Expedite,,,, Order on Motion to Withdraw,,,, Order on

Motion to Shorten Time for Hearing,,, 93 . (Appeal Fee $505 Fee Paid, Receipt No. ACACDC-27000595.) (Attachments: # 1 Exhibit ECF 93 & 65, # 2 Supplement Forms 1 & 6)(Watson, Kayla) (Entered: 06/29/2020)

95 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55568. Appellants' urgent motion

07/01/2020 07/03/2020 07/03/2020
07/06/2020
07/07/2020

to stay the district court's May 26, 2020 order is denied. We lack jurisdiction to review the district court's June 26, 2020 order denying appellants' ex parte request absent the filing of a new or amended notice of appeal. [See document for all details.](mat) (Entered: 07/01/2020)
96 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 2055668 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 94 as to defendants Don Barnes, Orange County. (twdb) (Entered: 07/02/2020)
97 STATUS REPORT Defendants' Court Ordered Weekly Update for the Week of July 3, 2020 filed by Defendants Don Barnes, Orange County. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Watson, Kayla) (Entered: 07/03/2020)
99 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55668. In light of these circumstances, Defendants have not demonstrated a strong likelihood of success in showing the district court abused its discretion in denying the motion to dissolve the injunction as premature. We therefore deny Defendants' emergency motion to stay the preliminary injunction (Docket Entry No. 2). The previously established briefing schedule remains in effect. IT IS SO ORDERED. [See document for more details.] (mat) (Entered: 07/06/2020)
98 APPLICATION of Non-Resident Attorney Sarah Hinger to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27082640) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 07/06/2020)
100 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Sarah Hinger to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagn 98 . The following error(s) was/were

07/07/2020 07/07/2020 07/07/2020 07/08/2020 07/10/2020

found: Local Rule 83-2.1.3.3(b) Proposed order not attached. (lom) (Entered: 07/07/2020)
101 APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27104121) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 07/07/2020)
102 APPLICATION of Non-Resident Attorney Sarah Hinger to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Previously Paid on 7/6/2020, Receipt No. 27082640) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 07/07/2020)
103 APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Previously Paid on 7/7/2020, Receipt No. 27104121) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 07/07/2020)
104 ORDER by Judge Jesus G. Bernal: Granting 102 Non-Resident Attorney Sarah Hinger APPLICATION to Appear Pro Hac Vice on behalf of Ahlman et al. Plaintiffs, designating Mitchell A. Kamin as local counsel. (twdb) (Entered: 07/08/2020)
105 APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Previously

Paid on 7/7/2020, Receipt No. 27104121) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 07/10/2020)

07/10/2020

106 STATUS REPORT With Certificate of Service filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 07/10/2020)

07/10/2020

107 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wag 105 . The following error(s) was/were found: Incorrect document attached to the docket entry. Other error(s) with document(s): Proposed Order was submitted, not an Application of Non-Resident Attorney to Appear in a Specific Case. (Thrasher, Lupe) (Entered: 07/12/2020)

07/13/2020

108 NOTICE OF LODGING filed re Notice of Deficiency in Electronically filed Pro Hac Vice Application (G-112C) - optional html form,, 107 , APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wag 105 (Attachments: # 1 Proposed Order, # 2 Caption Page)(Kamin, Mitchell) (Entered: 07/13/2020)

07/13/2020

109 ORDER by Judge Jesus G. Bernal: Granting 101 Non-Resident Attorney Marta P. Cook APPLICATION to Appear Pro Hac Vice on behalf of Ahlman et al, Plaintiffs, designating Mitchell A. Kamin as local counsel. Granting 103 Non-Resident Attorney Marta P. Cook APPLICATION to Appear Pro Hac Vice on behalf of Ahlman et al, Plaintiffs, designating Mitchell A. Kamin as local counsel. (twdb) (Entered: 07/14/2020)

07/17/2020

110 COMPLIANCE REPORT of ORANGE COUNTY SHERIFF DON BARNES RE PRELIMINARY INJUNCTION ORDER filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 07/17/2020)

07/24/2020 111

STATUS REPORT Defendant's Compliance Report of Orange County Sheriff Don Barnes Re: Preliminary Injunction Order 65

07/31/2020 08/11/2020 08/27/2020 08/27/2020 08/28/2020 08/28/2020 09/01/2020
09/03/2020

: July 24, 2020 filed by Defendant Don Barnes. (Watson, Kayla) (Entered: 07/24/2020)
112 COMPLIANCE REPORT of ORANGE COUNTY SHERIFF DON BARNES RE PRELIMINARY INJUNCTION ORDER filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 07/31/2020)
113 Joint STIPULATION for Protective Order filed by Defendants Don Barnes, Orange County. (Attachments: # 1 Proposed Order)(Watson, Kayla) (Entered: 08/11/2020)
114 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 5 days, filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner.. (Kamin, Mitchell) (Entered: 08/27/2020)
115 REQUEST for ADR Procedure No. 1 filed. Parties request to Appear Before Honorable Shashi H. Kewalramani for settlement proceedings. Filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner.(Kamin, Mitchell) (Entered: 08/27/2020)
116 REQUEST for ADR Procedure No. 2 filed. Parties request to appear before a neutral selected from the court's Mediation Panel for mediation. Filed by Defendant Don Barnes(Watson, Kayla) (Entered: 08/28/2020)
117 APPLICATION for Protective Order filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Redline)(Kamin, Mitchell) (Entered: 08/28/2020)
118 VIDEO SCHEDULING NOTICE Re Protective Order Dispute Video Conference set for 9/8/2020 11:00 AM before Magistrate Judge Shashi H. Kewalramani. The participating parties have already been provided with the video link. The public may access this hearing by dialing +1 323-813-9520 Conference ID: 446 294 882#.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dc) TEXT ONLY ENTRY (Entered: 09/01/2020)
119 PROTECTIVE ORDER RE: STIPULATED PROTECTIVE ORDER REGARDING PRODUCTIONOF CONFIDENTIAL

09/08/2020 09/22/2020 09/23/2020 09/28/2020

DISCOVERY PURSUANT TO PLAINTIFFS' DISCOVERY REQUESTS by Magistrate Judge Shashi H. Kewalramani, re Stipulation for Protective Order 113 (dc) (Entered: 09/03/2020)
120 MINUTES OF denying 117 Application for Protective Order; Telephone Conference held before Magistrate Judge Shashi H. Kewalramani: Following discussion between the Court and Counsel, parties are to provide a stipulated protective order by September 30, 2020, in a single word document setting out the positions of the parties in a red-lined format. If the parties cannotagree on the terms of a protective order, then a continued hearing on the matter will be held on October 2, 2020 at 9:00 a.m. to address the remaining issues Court Recorder: MS Teams. (dc) (Entered: 09/09/2020)
121 EX PARTE APPLICATION of Non-Resident Attorney Laura Beth Cohen to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-28193269) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 09/22/2020)
122 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: EX PARTE APPLICATION of Non-Resident Attorney Laura Beth Cohen to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Tr 121 . The following error(s) was/were found: Incorrect event selected. Correct event is Appear Pro Hac Vice (G-64) Other error(s) with document(s): Document is not an EX PARTE document, but is an Application. (Thrasher, Lupe) (Entered: 09/23/2020)
123 APPLICATION of Non-Resident Attorney Joseph Longley to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-28274593) filed by Plaintiffs/Petitioners Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments:

# 1 Proposed Order re Joseph Longley Application for Pro Hac Vice) (Eliasberg, Peter) (Entered: 09/28/2020)

09/28/2020

124 MINUTES OF ORDER RE: DEPOSITION DISCOVERY DISPUTE held before Magistrate Judge Shashi H. Kewalramani. At the request of the parties, the Court held a discovery dispute. The parties will continue to further meet and confer to explore the possibility of allowing Plaintiff's counsel to meet and prepare their incarcerated clients, who are in the custody of the Orange County Jail, for depositions in this matter. The parties are to provide an update, via e-mail, to the Court by 12:00 p.m. on Wednesday, September 30, 2020, at which time the Court may set a further hearing on the matter, if the parties are at an impasse. With respect to the outstanding protective order issue, set for hearing on October 2, 2020 at 9 a.m., the parties are to provide their respective positions by 12:00 p.m. on Thursday, October 1, 2020. Court Recorder: MS TEAMS 9/28/20. (hr) (Entered: 09/28/2020)

09/29/2020

125 VACATING SCHEDULING NOTICE at the request of the parties, the previously scheduled discovery dispute hearing for October 2, 2020 9:00 a.m. has been terminated. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dc) TEXT ONLY ENTRY (Entered: 09/29/2020)

09/29/2020

126 ORDER by Judge Jesus G. Bernal: granting 121 Non-Resident Attorney Laura Beth Cohen APPLICATION to Appear Pro Hac Vice on behalf of for Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Orange County, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner, designating Mitchell A Kamin as local counsel. (lom) (Entered: 09/29/2020)

10/02/2020

127 STIPULATION for Protective Order filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order - Revised Proposed Protective Order)(Kamin, Mitchell) (Entered: 10/02/2020)

10/05/2020 128

REVISED STIPULATION AND PROTECTIVE ORDER REGARDING PRODUCTION OF CONFIDENTIAL DISCOVERY by Magistrate Judge Shashi H. Kewalramani re Stipulation for Protective Order 127 . (see document for details) (hr) (Entered: 10/06/2020)

10/06/2020

129 ORDER by Judge Jesus G. Bernal: Granting 123 Non-Resident Attorney Joseph Longley APPLICATION to Appear Pro Hac Vice

10/15/2020

on behalf of Melissa Ahlman, Daniel Kauwe,Michael Seif, Javier Esparza, Pedro Bonilla, Cynthia Campbell,Monique Castillo, Mark Trace, Cecibel Caridad Ortiz, and DonWagner, Plaintiffs, designating Peter J. Eliasberg as local counsel. (twdb) (Entered: 10/06/2020)
130 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 94 filed by Orange County, Don Barnes, Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 2055568; 20-55668. Appellees motions to dismiss these appeals as moot (Docket Entry No. 37 in appeal No. 20-55568, Docket Entry No. 11 in appeal No. 20-55668) are referred to the panel assigned to decide the merits of these appeals. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 10/16/2020)

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 Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 1 of 70 Page ID #:1

1 MITCHELL KAMIN (SBN 202788) 2 mkamin@cov.com
AARON LEWIS (SBN 284244) 3 alewis@cov.com 4 BRITTANY BENJAMIN (SBN 323968)
bbenjamin@cov.com 5 COVINGTON & BURLING LLP 6 1999 Avenue of the Stars
Los Angeles, CA 90067-4643 7 Telephone: (424) 332-4800 8 Facsimile: (424) 332-4749

9 CASSANDRA STUBBS (SBN 218849)
10 cstubbs@aclu.org AMERICAN CIVIL LIBERTIES UNION
11 FOUNDATION
12 201 W. Main St., Suite 402 Durham, NC 27701
13 Telephone: (919) 682-5659
14 Facsimile: (919) 682-5961

15 Attorneys for Plaintiffs

16

[Additional Counsel continued on next page] 17

UNITED STATES DISTRICT COURT 18

FOR THE CENTRAL DISTRICT OF CALIFORNIA 19

20

SOUTHERN DIVISION

21

22 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
23 PEDRO BONILLA, CYNTHIA
24 CAMPBELL, MONIQUE CASTILLO, MARK TRACE, CECIBEL CARIDAD
25 ORTIZ, and DON WAGNER, on behalf of
26 themselves and all others similarly situated,

27

Plaintiffs,

28

Case No.: 8:20-cv-835
CLASS ACTION
PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

PETITION FOR WRIT OF HABEAS CORPUS

1

AND COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 2 of 70 Page ID #:2

1

2

v.

3 DON BARNES, in his official capacity as 4 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA 5

6

Defendant.

7 [Additional Counsel continued from first 8 page]

9 STACEY GRIGSBY*

10 sgrigsby@cov.com AMIA TRIGG** (SBN 282890)
11 atrigg@cov.com

12 COVINGTON & BURLING LLP One CityCenter
13 850 Tenth Street NW

14 Washington, DC 20001 Telephone: (202) 662-6000
15 Facsimile: (202) 778-5906

16 OLIVIA ENSIGN*
17 oensign@aclu.org

18 CRISTINA BECKER* cbecker@aclu.org
19 AMERICAN CIVIL LIBERTIES UNION

20 FOUNDATION

21

201 W. Main St., Suite 402 Durham, NC 27701

22 Telephone: (919) 682-5659 23 Facsimile: (919) 682-5961

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IMMEDIATE RELIEF SOUGHT
JOHN WASHINGTON (SBN 315991) jwashington@sshhlaw.com SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 Telephone: (310) 399-7040 Facsimile: (310) 399-7040
PETER ELIASBERG (SBN 189110) peliasberg@aclu.org AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St Los Angeles, CA 90017 Telephone: (213) 977-9500
PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000 Irvine, CA 92687 Telephone: (949) 824-0066

Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 3 of 70 Page ID #:3

1 CARL TAKEI 2 ctakei@aclu.org
SOMIL TRIVEDI* 3 strivedi@aclu.org 4 CLARA SPERA*
cspera@aclu.org 5 AMERICAN CIVIL LIBERTIES UNION 6 FOUNDATION
125 Broad Street, 18th Floor 7 New York, NY 10004 8 Telephone: (212) 607-3300
Facsimile: (212) 607-3318 9

ZOE BRENNAN-KROHN** (SBN 324912) zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415)-343-0769 Facsimile: (415) 255-1478

10 ATTORNEYS FOR PLAINTIFFS
11 *pro hac vice application forthcoming
12 **C.D. California admission application forthcoming
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1

INTRODUCTION

2

1. Plaintiffs, who are all confined in the Orange County Jail, bring this action

3 because the conditions of their incarceration have put them all at imminent risk of serious

4 illness and death from COVID-19.

5

2. We are in the midst of the most dangerous pandemic in generations.1 The

6 effects of the COVID-19 pandemic have rippled through local communities across the

7 country, including Orange County. While COVID-19 has spread through community,

8 jails, such as the Orange County Jail, have become hotbeds for COVID-19 cases,

9 threatening the lives of people inside the jail and the broader community.2 As of April 29,

10 2020, 117 people in the Orange County Jail have tested positive for COVID-19 out of 227

11 people who were tested.3 All indications are that this number will continue to rise

12 unchecked absent urgent intervention.

13

14

15

16 1 John M. Barry, The Single Most Important Lesson from the 1918 Influenza, New York 17 Times (March 17, 2020), https://cutt.ly/PtQ5uAZ (Opinion piece by author of “The Great
18 Influenza: The Story of the Deadliest Pandemic in History,” noting comparison between current COVID-19 outbreak and the 1918 influenza outbreak widely considered one of the
19 worst pandemics in history).

20 2 The Orange County Jail has this in common with jails all over the country. From a public

21

health perspective, jails are particularly dangerous environments. The rate of infection in the Cook County Jail in Chicago “is higher than most anywhere else in the country.”

22 Cheryl Corley, The COVID-19 Struggle in Chicago’s Cook County Jail, NPR (Apr. 13,

23

2020), https://www.npr.org/2020/04/13/833440047/the-covid-19-struggle-in-chicagoscook-county-jail. One of the largest outbreaks in the United States is in the Ohio prison

24 system. Virus outbreak in Ohio prisons highlights risk at US lockups, Boston Herald, April

25

21, 2020 (last visited April 21, 2020), https://www.bostonherald.com/2020/04/21/virusoutbreak-in-ohio-prisons-highlights-risk-at-us-lockups/.

26 3 COVID-19 in OC Jails,

27 https://www.ocsd.org/documents/sheriff/COVIDStats4.28.20.pdf.

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1

3. COVID-19 is a novel communicable virus that has proved unusually fatal.4

2 Many have been sickened, and many have died. Those with certain underlying conditions

3 are at increased risk of COVID-19-related complications and death.

4

4. There is no vaccine or cure for COVID-19.5 Public health experts have

5 issued detailed recommendations to prevent the spread of COVID-19 and to save lives.

6 These recommendations include: maintaining social distancing of at least six feet; wearing

7 masks when venturing out to complete essential tasks; cleaning and disinfecting communal

8 surfaces regularly; and proper handwashing.6 Many, if not all, of these precautions are

9 impossible in the Orange County Jail facilities at the current population levels. The Orange

10 County Jail sees regular turnover of detainees, and staff come and go from the jail and into

11 the community daily. People incarcerated in the Orange County Jail cannot isolate and

12

13

14

15

16

17 4 As of April 28, over 981,000 people in the United States have contracted COVID-19 and
18 more than 55,000 people have died. Centers for Disease Control and Prevention, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
19 See also Michael Rothfeld et al., The Heartbreaking Last Texts of a Hospital Worker on
20 the Front Lines, NY Times (Apr. 15, 2020) (describing the final texts from a hospital worker who died after contracting coronavirus to her daughter, “Love you[.] Mom be
21 back[.]”). See also Exhibit A, Declaration of Don Wagner ¶ 21 (“I am 68 years old and I
22 don’t want to get a life sentence by catching the virus and dying.”). *Counsel have been unable to secure wet signatures for certain declarations, and were instructed by the clerk’s
23 office to include a declaration to this effect. See Exhibit B, Declaration of Brittany
24 Benjamin. 25 5World Health Organization, Coronavirus, https://cutt.ly/ztWyf7e (“At this time, there are
no specific vaccines or treatments for COVID-19.”). 26 6 Center for Disease Control, How Coronavirus Spreads, https://cutt.ly/CtYRkkC (“The
27 virus that causes COVID-19 is spreading very easily and sustainably between people.”).

28

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1 have no ability to maintain safe social distance.7 Efforts to regularly disinfect common

2 surfaces and maintain personal hygiene are difficult and inadequate.8

3

5. The steps Sheriff Barnes has taken to date are manifestly inadequate in the

4 face of the ongoing outbreak of COVID-19 inside the jail. At the current population levels,

5 people detained in the Orange County jail are unable to socially distance themselves from

6 others. While the jail staff provide some cleaning supplies, “[t]here are never enough

7 supplies to clean throughout the day.”9 The masks given to detained people are “cheap and

8 made of paper, and rip easily.”10 Jail staff do not always wear protective equipment, like

9 gloves and masks, and detainees have not been given gloves at all.

10

6. Compounding the problem, people continue to be booked into the jail for

11 low-level offenses that pose little or no public safety risk: public intoxication, simple drug

12 possession, and motor vehicle offenses such as driving with one’s lights off.11 These

13 bookings, as well as the transportation of these defendants to court in close proximity to

14 deputies, create unnecessary exposure risks for everyone involved.12

15

7. Perhaps most dangerously of all, the Orange County Jail has identified, but

16 not released, over 500 detainees who are medically vulnerable and at heightened risk of

17 serious infection and death. Defendants have arbitrarily decided only to proceed with the

18 release of a small sub-group of the medically-vulnerable people detained.

19

20

21

7 Exhibit C, Declaration of Melissa Ahlman ¶ 24 (“All of the woman [sic] in the medical tank share two toilets. Sometimes we have to wait in line for these. If we have to wait in

22 line we can not [sic] space out six feet apart.”); Exhibit D, Declaration of Enrique

23 Hernandez ¶ 7-8. 8 Exhibit E, Declaration of Praney Saem ¶ 19 (“The jail is not giving us enough hygiene or
24 cleaning products.”).

25 9 Exhibit F, Declaration of Monique Castillo ¶ 19.

26 10 Exhibit D, Hernandez Decl. ¶ 17.

27 11 Exhibit G, Declaration of William Webster ¶ 7.

28 12 Id. at ¶ 8.

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1

8. To prevent the further infections and unnecessary fatalities, the Orange

2 County Jail must align its operations with public health principles by immediately releasing

3 the medically-vulnerable population and then releasing others in sufficient numbers so that

4 the jail can adhere to the medically-recommended quarantining, testing, distancing,

5 hygiene, and treatment protocols. Public health expertise tells us that aggressive measures,

6 including reducing the jail population, are our last and best chance to slow the growth of

7 new infections in the jail and in the surrounding community.

8

9. Preventing the Orange County Jail outbreak from getting worse will have

9 clear benefits not only for the people inside the jail, but also for the community at large.

10 Jails are not closed off from the communities around them; every day, custody, medical,

11 and support staff and contractors who have direct contact with detainees enter and leave

12 the facility, along with detainees who are newly booked into the jail, leave and return for

13 court hearings, and leave upon release.13 For this reason, an outbreak in the jail can spread

14 easily to the surrounding community, often through jail staff who become infected and

15 bring the virus home.14 Additionally, when an incarcerated patient’s needs are too acute

16 for the jail to provide adequate treatment, the patient must be transported to and treated at

17 a community hospital.15 Thus, a continued outbreak of COVID-19 cases in the Orange

18 County Jail will not only directly harm people infected by the jail outbreak, but will also

19 divert finite medical resources from the general Orange County community, leading to

20 further county-wide public health harms.16 The hospital resources in the Orange County

21

22 13 Exhibit H, Declaration of Joe Goldenson, M.D. ¶ 33.
23 14 Id. ¶ 34. 15 Id. ¶ 25.
24 16 Exhibit I, Declaration of Daniel Parker, Ph.D. ¶¶ 28-30. See also Elizabeth Cohen et al.,
25 New York surgeon writes haunting letter about rationing care for patients who don’t have

26 the

coronavirus,

CNN

(Apr.

5,

2020,

2:22

PM),

https://www.cnn.com/2020/04/05/health/rationing-care-patients-without27 coronavirus/index.html (“We have had to make decisions that I personally have never had

28

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1 community are limited and are not equipped to handle increased upticks in the quantity of

2 people who need treatment for COVID-19 infection.17 Given the existing number of

3 specialized beds and ventilators available in the County, a surge in the need for specialized

4 beds could result in a humanitarian disaster.18 Many deaths have occurred in places where

5 epidemics have outpaced hospital capacity.19 The Court can and must take action to

6 prevent these deaths.

7

10. Accordingly, Plaintiffs bring this action on behalf of themselves and all those

8 similarly situated. Plaintiffs seek to represent a class of all current and future people

9 incarcerated in the Orange County Jail, and seek to represent four subclasses. These

10 subclasses include: two “Medically-Vulnerable” Subclasses (one pre-trial and one post-

11 conviction), including all people detained at the Jail who, because of age, pregnancy, and/or

12 underlying medical conditions, are particularly vulnerable to death or serious illness if they

13 contract COVID-19; and two “Disability” Subclasses (one pre-trial and one post-

14 conviction), including all people in the Medically-Vulnerable Subclasses who are

15 vulnerable because of conditions that are protected under federal disability rights laws.

16 Plaintiffs seek (1) the immediate release of all Medically-Vulnerable and Disability

17 Subclass Members, coupled with appropriate, public-health-informed, support and

18 conditions upon release and (2) all necessary steps to safeguard the health of those

19 remaining in the Orange County Jail, including further population reductions that would

20

21 to contemplate before. . . . We have had to ration care and make decisions about who is
22 considered an urgent or emergent case.”); Joanne Kenen, Local officials alarmed by dearth 23 of ventilators, hospital beds, (Mar. 14, 2020, 7:00 a.m.), https://cutt.ly/stYTDDk (“[T]here
are worrisome limitations on critical care beds and the number of health care workers to 24 staff them, public health officials said.”).
25 17 Exhibit I, Parker Decl. ¶ 28.
26 18 Id. ¶ 29.
27 19 Id. ¶ 27.

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1 permit the jail to successfully implement the public health measures needed to prevent a

2 massive outbreak inside—one that will inevitably spread to the surrounding communities.

3 If this Court does not grant immediate release on the basis of this Complaint, Plaintiffs

4 request an expedited hearing. Given the exponential spread of this highly contagious virus,

5 time is of the essence.20

6

I. JURISDICTION AND VENUE

7

11. Plaintiffs bring this putative class action pursuant to 22 U.S.C. § 2241 and 42

8 U.S.C. § 1983 for relief from both detention and conditions of confinement that violate

9 their Eighth and Fourteenth Amendment rights under the U.S. Constitution and pursuant

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

11

12. This Court has subject matter jurisdiction over these claims pursuant to 28

12 U.S.C. § 2241 (habeas corpus), 42 U.S.C. § 1983, and 28 U.S.C. § 1331 (federal question

13 jurisdiction).

14

13. Venue is proper in this judicial district and division pursuant to 28 U.S.C.

15 § 2241(d) because the Plaintiffs and all other class members are in custody in this judicial

16 district and venue. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a

17 substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this

18 district.

19

II. PARTIES

20

14. Plaintiff Melissa Ahlman is a 32-year-old woman who is currently being held

21 pre-trial at the Central Women’s Jail. She has been in OCSD custody since February 19,

22 2020. Ms. Ahlman is a nursing mother and has to pump milk for her seven-month-old

23 baby. She is housed in a “medical tank” with six medically-vulnerable women who have

24

25 20 COVID-19 Dashboard by the Center for Systems Science and Engineering at Johns

26 Hopkins University, Coronavirus Resource Center, available at

27

https://coronavirus.jhu.edu/map.html; see also Brittany Shammas et al., Trump says quarantine for New York area ‘Will not be Necessary’; U.S. coronavirus-related deaths

28 double in two days, Washington Post (Mar. 28, 2020, 11:27 p.m.), https://cutt.ly/ktRo8u0.

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1 diabetes, autoimmune diseases, and other women who are nursing. Ms. Ahlman must drop

2 her milk off with the medical unit multiple times a day, where there is a significant amount

3 of traffic and people waiting. She comes in close contact with nurses and other incarcerated

4 people who are at the medical unit because they feel ill, including people with COVID-19-

5 like symptoms such as fevers and coughs. The other incarcerated people with whom Ms.

6 Ahlman is housed similarly make regular trips between their shared housing unit and the

7 medical facility. Ms. Ahlman has been denied the ability to maintain social distancing and

8 has not been provided with sufficient Personal Protective Equipment (“PPE”), hygiene, or

9 cleaning supplies. Ms. Ahlman has not been tested for COVID-19 or removed from contact

10 with other highly-vulnerable individuals in spite of her repeated exposure to individuals

11 with COVID-19 symptoms.

12

15. Plaintiff Daniel Kauwe is a 42-year-old man who is currently being held in

13 the Theo Lacy Facility. He has been in OCSD custody since September 25, 2019. He is

14 in pre-trial custody and is awaiting a hearing in June. Mr. Kauwe is medically vulnerable.

15 He is immunocompromised and prone to infection, and is currently housed in a medical

16 unit. While in custody, he has been unable to consistently practice social distancing and

17 has not been provided with adequate cleaning supplies or PPE. Mr. Kauwe is an individual

18 with a disability for purposes of the ADA and the Rehabilitation Act.

19

16. Plaintiff Michael Seif is a 35-year-old man who is currently being held in the

20 Central Men’s Jail. He has been in OCSD custody since December 5, 2019. He is in pre-

21 trial custody and was supposed to have had a hearing on April 7, 2020. Mr. Seif is

22 medically vulnerable; he had a heart attack and suffered a collapsed lung shortly before his

23 incarceration and he has not had adequate follow-up care. While in custody, he has been

24 unable to consistently practice social distancing and has not been provided with adequate

25 cleaning supplies or PPE. Mr. Seif is an individual with a disability for purposes of the

26 ADA and the Rehabilitation Act.

27

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1

17. Plaintiff Javier Esparza is a 35-year-old man who is currently being held in

2 the Theo Lacy Facility. He has been in OCSD custody since February 25, 2019. While in

3 custody, Mr. Esparza has been repeatedly placed in close contact with others. He has also

4 been moved into new housing during the pandemic, increasing the risk of spreading the

5 virus throughout the facility. He is unable to consistently practice social distancing and

6 has not been provided with adequate cleaning supplies or PPE.

7

18. Plaintiff Pedro Bonilla is a 36-year-old man who is currently being held in

8 the Theo Lacy Facility. He has been in OCSD custody since August 12, 2018 and his

9 expected release date is August 5, 2020. While in custody, Mr. Bonilla has been repeatedly

10 placed in close contact with others, including individuals who have been exposed to

11 COVID-19. He is unable to consistently practice social distancing and has not been

12 provided with adequate cleaning supplies or PPE. Mr. Bonilla contracted Hepatitis C

13 during a previous period of incarceration. Mr. Bonilla is an individual with a disability for

14 purposes of the ADA and the Rehabilitation Act.

15

19. Plaintiff Cynthia Campbell is a 64-year-old woman who is currently being

16 held at the Central Women’s Jail. She has been in the custody of the OCSD since October

17 15, 2019. Ms. Campbell has—and receives immunosuppressants for—rheumatoid arthritis

18 which makes her medically vulnerable. She is housed in a designated medical unit. In

19 spite of her vulnerable condition, she has not received prompt medical attention while in

20 custody. Other individuals with whom Ms. Campbell is housed make regular trips between

21 their shared housing and the medical facility in order to receive routine treatments. During

22 these trips, these women are exposed to large numbers of (often sick) individuals. Ms.

23 Campbell has similarly had to travel between her unit and the medical office on multiple

24 occasions, and has been in close contact with others while doing so. In her housing unit,

25 Ms. Campbell has been denied the ability to maintain social distancing or proper hygiene.

26 She has not been tested for COVID-19 or removed from contact with other highly-

27 vulnerable individuals. Ms. Campbell is an individual with a disability for purposes of the

28 ADA and the Rehabilitation Act.

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1

20. Plaintiff Monique Castillo is a 43-year-old woman who is currently being

2 held at the Central Women’s Jail. She has been in OCSD custody since December 19,

3 2019. Ms. Castillo is medically vulnerable. She has—and is medicated for—Type 1

4 diabetes and anxiety. As a result of her medical needs, she is housed in a “medical tank”

5 with six other medically-vulnerable women. In order to receive insulin, she is brought to

6 the medical office four times per day, each time finding herself in close contact with

7 incarcerated people from other parts of the jail, many of whom are ill and show symptoms

8 consistent with COVID-19. Other incarcerated people with whom Ms. Castillo is housed

9 similarly make regular trips between their shared housing and the medical facility. Ms.

10 Castillo has been denied the ability to maintain social distancing or proper hygiene, and

11 has not been tested for COVID-19 or removed from contact with other highly-vulnerable

12 incarcerated people in spite of her repeated exposure to individuals with COVID-19

13 symptoms. Ms. Castillo is an individual with a disability for purposes of the ADA and the

14 Rehabilitation Act.

15

21. Plaintiff Mark Trace is a 53-year-old man who is currently being held in the

16 Central Men’s Jail. He has been in OCSD custody for approximately six months and is set

17 to be released on June 23, 2020. Before being transferred to his current housing, he was

18 held at the Theo Lacy Facility. Mr. Trace is medically vulnerable. He has multiple,

19 significant underlying health conditions. These include sclerosis of the liver, Hepatitis C

20 and D, asthma, tuberculosis, valley fever, and seizures. He is also currently experiencing

21 unexplained nausea and sweats. Several people in adjacent housing units have contracted

22 COVID-19, but despite Mr. Trace’s symptoms and vulnerability, he has been denied a test.

23 He is housed with approximately 12 other individuals and is unable to consistently practice

24 social distancing. He has also not been provided with adequate cleaning supplies or PPE.

25 Mr. Trace is an individual with a disability for purposes of the ADA and the Rehabilitation

26 Act.

27

22. Plaintiff Cecibel Caridad Ortiz is a 31-year-old woman who is currently being

28 held at the Central Women’s Jail. She has been in the custody of the OCSD since October

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1 30, 2018. Ms. Caridad Ortiz is medically vulnerable and is housed in a designated medical

2 module. She has—and receives medical treatment for—Type 1 diabetes and anxiety. In

3 order to receive a diabetic check, she is brought to the medical office three times per day,

4 each time finding herself in close contact with people who are housed in other parts of the

5 jail, many of whom are ill. Other individuals with whom Ms. Caridad Ortiz is housed

6 similarly make regular trips between their shared housing and the medical facility. Ms.

7 Caridad Ortiz has been denied the ability to maintain social distancing or proper hygiene,

8 and has not been tested for COVID-19 or removed from contact with other highly-

9 vulnerable individuals in spite of her repeated exposure to potentially contagious

10 individuals. Ms. Caridad Ortiz is an individual with a disability for purposes of the ADA

11 and the Rehabilitation Act.

12

23. Plaintiff Don Wagner is a 68-year-old man who is currently being held at the

13 Theo Lacy facility. He has been in OCSD custody since the first week of March 2020. He

14 was transported to Theo Lacy from a federal facility in San Diego on a bus that held 30 to

15 40 people sitting in close proximity. He is uncertain when his next court appearance will

16 be held. Mr. Wagner is medically vulnerable. He is a cancer survivor and his blood

17 pressure and thyroid levels are monitored by the jail’s nurses. In order to receive this

18 monitoring, Mr. Wagner must go to the nurse’s station, where he sometimes waits in line

19 with incarcerated people from across the jail. The nurses recently told Mr. Wagner that he

20 needs to see a medical specialist outside of the jail due to his thyroid levels and his blood

21 pressure, but Mr. Wagner is uncertain when he will be able to be seen by such a specialist.

22 Mr. Wagner has also been in close proximity with people who he suspects may have been

23 in contact with COVID-19—with no option to distance himself. Mr. Wagner has also been

24 denied the means to keep himself and his surroundings clean. He receives only a small bar

25 of soap per week and, because he is indigent he cannot buy more. He uses the only towel

26 he receives to clean both himself, and his cell. Mr. Wagner’s age and his medical

27 conditions make him particularly vulnerable to COVID-19, and he fears for his safety and

28

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1 well-being. Mr. Wagner is an individual with a disability for purposes of the ADA and the

2 Rehabilitation Act.

3

24. The Orange County Sheriff, Don Barnes (“Sheriff Barnes”), is an Orange

4 County Official, and the elected head of OCSD. Sheriff Barnes currently has immediate

5 custody over Plaintiffs and all other putative class members as the administrator of the

6 Orange County Jail. Sheriff Barnes is a final policymaker for running and administering

7 the jail in Orange County. Sheriff Barnes is sued in his official capacity.

8

25. Orange County, California (“Orange County”) is a municipal corporation

9 organized under the laws of the State of California. Orange County controls and operates

10 the Orange County Jail, through Sheriff Barnes. Orange County currently has immediate

11 custody over Plaintiffs and all other putative class members. Orange County is a public

12 entity for the purposes of the ADA. Orange County is a recipient of federal financial

13 assistance for the purposes of the Rehabilitation Act. Among others, Sheriff Barnes is a

14 final policymaker for Orange County.

15

III. FACTUAL ALLEGATIONS

16

A. COVID-19 Poses a Significant Risk of Illness, Injury, or Death.

17

26. The novel coronavirus that causes COVID-19 has led to a global pandemic.21

18 As of April 28, 2020, there were more than 2,954,222 reported COVID-19 cases

19 throughout the world22 and more than 55,000 deaths in the United States.23 Projections

20

21

22

23 21 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, 24 WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC. 25 22 World Health Organization, Coronavirus disease 2019 (COVID-19) Situation Report –
99, https://www.who.int/docs/default-source/coronaviruse/situation-reports/2020042826 sitrep-99-covid-19.pdf?sfvrsn=119fc381_2.
27 23 Cases in the U.S., supra note 4.

28

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1 indicate that as many as 240,000 people in the U.S. will die from COVID-19, accounting

2 for existing interventions.24

3

27. The virus is known to spread from person to person through respiratory

4 droplets, close personal contact, and contact with contaminated surfaces and objects.25

5 There is no vaccine against COVID-19 and no known medication to prevent or treat

6 infection.26 Social distancing—deliberately keeping at least six feet of space between

7 persons to avoid spreading illness27—and a vigilant hygiene regimen, including washing

8 hands frequently and thoroughly with soap and water, are the only known effective

9 measures for protecting against transmission of COVID-19.28 Because the coronavirus

10 spreads among people who do not show symptoms, staying away from people is the best

11 way to prevent contracting the virus. In other words, everyone (including Orange County

12 Jail officials) must act as is if everyone has the disease.

13

28. Once contracted, COVID-19 can cause severe damage to lung tissue,

14 including a permanent loss of respiratory capacity, and it can damage tissues in other vital

15 organs, such as the heart and liver.29

16

17 24 Rick Noack, et al., White House Task Force Projects 100,000 to 240,000 Deaths in U.S.,

18

Even With Mitigation Efforts, Washington Post. (Apr. 1, 2020, 12:02 AM), https://cutt.ly/5tYT7uo.

19 25 Centers for Disease Control and Prevention, Interim Infection Prevention and Control

20 Recommendations for Patience with Suspected or Confirmed Coronavirus Disease 2019

21 (COVID-19) in Healthcare Settings, https://cutt.ly/ztRAo0X. 26 Supra note 5.
22 27 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine,
23 https://cutt.ly/VtYYiDG.

24 28 Centers for Disease Control and Prevention, How to Protect Yourself & Others,

25

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html; Exhibit I, Parker Decl. ¶ 14.

26 29 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management

27 of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl.

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1

29. The risk of illness or death from COVID-19 is increased for older

2 populations.30 In a February 29, 2020 preliminary report, individuals age 50-59 had an

3 overall mortality rate of 1.3%; 60-69-year-olds had an overall 3.6% mortality rate, and

4 those 70-79 years old had an 8% mortality rate.31

5

30. People of any age who have certain underlying medical conditions, including

6 lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis

7 patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from

8 cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease),

9 inherited metabolic disorders, stroke, developmental disabilities, and asthma, also have an

10 elevated risk.32 Early reports estimate that the mortality rate for those with cardiovascular

11 disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory

12 disease, and 7.6% for cancer.33 People with all of these conditions are people with

13 disabilities protected under federal disability rights laws.

14

15 30 Xianxian Zhao et al., Incidence, clinical characteristics and prognostic factor of patients

16 with COVID-19: a systematic review and meta-analysis (Mar. 20, 2020), https://cutt.ly/etRAkmt.

17 31 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, Worldometer,

18 https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report);

19 Exhibit H, Goldenson Decl. ¶ 27.

32 Exhibit I, Parker Decl. ¶ 19; Exhibit H, Goldenson Decl. ¶ 27; Centers for Disease

20 Control

and

Prevention,

Symptoms

of

Coronavirus,

21 https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (“Older

adults and people who have severe underlying medical conditions like heart or lung disease 22 or diabetes seem to be at higher risk for developing more serious complications from

23 COVID-19 illness”); World Health Organization, Coronavirus disease (COVID-19) advice

24

for the public: Myth busters, https://cutt.ly/dtEiCyc (“Older people, and people with preexisting medical conditions (such as asthma, diabetes, heart disease) appear to be more

25 vulnerable to becoming severely ill with the virus.”).

26 33 World Health Organization, Report of the WHO-China Joint Mission on Coronavirus

Disease 2019 (COVID-19), 12 (Feb. 28, 2020) https://www.who.int/docs/default-

27 source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf

(finding

28

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31. In many people, COVID-19 causes fever, cough, and shortness of breath.

2 However, for people over the age of fifty or with medical conditions or disabilities that

3 increase the risk of serious COVID-19 infection, shortness of breath can be severe.34 Most

4 people in higher risk categories who develop serious illness will need advanced support.

5 This requires highly specialized equipment like ventilators that are in limited supply, and

6 an entire team of care providers, including nurses, respiratory therapists and intensive care

7 physicians.35

8

32. In serious cases, COVID-19 causes acute respiratory disease syndrome

9 (“ARDS”), which is life-threatening; those who receive ideal medical care with ARDS

10 have a 30% mortality rate.36 Even in non-ARDS cases, COVID-19 can severely damage

11 lung tissue, which requires an extensive period of rehabilitation, and in some cases, causes

12 permanent loss of breathing capacity.37 COVID-19 may also target the heart, causing a

13 medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis

14 can reduce the heart’s ability to pump.38 This reduction can lead to rapid or abnormal heart

15 rhythms in the short term, and long-term heart failure that limits exercise tolerance and the

16 ability to work.

17

18

19 fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those

20

with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).

21 34 Zhao, supra note 30.

22 35 Exhibit I, Parker Decl. at ¶ 27.

23 36 Letter from the Faculty at the Johns Hopkins School of Medicine, School of Nursing,
24 and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25, 2020, https://cutt.ly/stERiXk.
25 37 Exhibit J, Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 5, Declaration of Dr. 26 Jonathan Louis Golob at ¶ 7.

27 38 Id.

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1

33. COVID-19 can also trigger an over-response of the immune system and result

2 in widespread damage to other organs, including permanent injury to the kidneys and

3 neurologic injury.39

4

34. These complications can manifest at an alarming pace. Patients can show the

5 first symptoms of infection in as little as two days after exposure, and their condition can

6 seriously deteriorate in as little as five days or sooner.40

7

35. Even some younger and healthier people who contract COVID-19 may

8 require supportive care, including supplemental oxygen, positive pressure ventilation, and

9 in extreme cases, extracorporeal mechanical oxygenation.41

10

36. The need for care, including intensive care, and the likelihood of death, is

11 much higher from COVID-19 infection than from the seasonal influenza.42 According to

12 recent estimates, the fatality rate of people infected with COVID-19 is about ten times

13 higher than a severe seasonal influenza, even in advanced countries with highly effective

14 health care systems.43 For people in the highest risk populations, the fatality rate of

15 COVID-19 infection is about 15 percent.44

16

37. Patients who do not die from serious cases of COVID-19 may face prolonged

17 recovery periods, including extensive rehabilitation from neurologic damage, loss of digits,

18 and loss of respiratory capacity.45

19

20 39 Id.

21 40 Centers for Disease Control and Prevention, Interim Guidance on Management of

22

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://cutt.ly/atJPt5B.

23 41 Exhibit J, Golob Decl., supra note 37 ¶ 5.

24 42 Id. at ¶ 4.

25 43 McKay, supra note 21.

26 44 Exhibit J, Golob Decl., supra note 37 at ¶ 4.

27 45 Id.

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1

B. COVID-19 Poses Special Risks to People Who Are Incarcerated.

2

38. Beyond the general public health risks the COVID-19 pandemic presents,

3 people who are incarcerated face a particularly acute threat of illness, permanent injury,

4 and death.

5

39. People in congregate environments where they live, eat, and sleep in close

6 proximity are at increased danger of contracting COVID-19, as already evidenced by the

7 rapid spread of the virus across the country in jails,46 in cruise ships47 and nursing homes.48

8 In particular, it is virtually impossible for people who are confined in crowded prisons,

9 jails, and detention centers to engage in the necessary social distancing and hygiene

10 required to mitigate the risk of transmission. For example, dramatic outbreaks have taken

11 hold in the Cook County Jail49 and Rikers Island in New York City, where the transmission

12 rate for COVID-19 is estimated to be the highest in the world.50 The CDC also warns of

13 “community spread” where the virus spreads easily and sustainably within a community

14 where the source of the infection is unknown.51

15

16

17 46 Supra note 2.
18 47 The CDC is currently recommending that travelers defer cruise ship travel worldwide. “Cruise ship passengers are at increased risk of person-to-person spread of infectious
19 diseases, including COVID-19.” COVID-19 and Cruise Ship Travel, Centers for Disease 20 Control and Prevention, https://cutt.ly/7tEEQvT.
21 48 The CDC notes that long-term care facilities and nursing homes pose a particular risk because of “their congregate nature” and the residents served. Centers for Disease Control
22 and Prevention, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, 23 https://cutt.ly/7tEEITH.
24 49 See supra note 2. 25 50 Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is
Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo. 26 51 Centers for Disease Control and Prevention, How Coronavirus Spreads, 27 https://cutt.ly/jtEE9vG.

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1

40. Correctional settings further increase the risk of contracting COVID-19 due

2 to the high numbers of people with chronic, often untreated, illnesses housed in a setting

3 with minimal levels of sanitation, limited access to personal hygiene, limited access to

4 medical care, presence of many high-contact surfaces, and no possibility of staying at the

5 necessary distance from others.52

6

41. Correctional facilities house large groups of people together, and move

7 people in groups.53 They frequently have insufficient medical care for the population even

8 outside times of crisis.54 Hot water, soap, and paper towels are often in limited supply.

9 Incarcerated people, rather than professional cleaners, are responsible for cleaning the

10 facilities55 and often are not given appropriate supplies. People in jails have high rates of

11 disabilities, including the disabilities that create particular risk factors for COVID-19

12 complications and death. The Bureau of Justice Statistics reports that people in jail are

13 four times as likely as the general population to have a disability, and this is almost

14

15

16

17 52 Letter from the Johns Hopkins Faculty, supra note 36; Exhibit K, Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.) at Doc. No. 42 (Mar. 16, 2020) (Declaration of Dr. Jaimie Meyer)
18 (noting, inter alia, that jails environments have reduced prevention opportunities, increased
19 susceptibility, and are often poorly equipped to diagnose and manage outbreaks of infection disease).
20 53 See, e.g, Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the
21 Coronavirus, Mother Jones (Mar. 6, 2020), https://cutt.ly/GtRSi3e.

22 54 See, e.g., Steve Coll, the Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019),

23 https://cutt.ly/ftERHNg.

55 See, e.g., Wendy Sawyer, How much do incarcerated people earn in each state?, Prison 24 Policy Initiative, (Apr. 10, 2017); https://cutt.ly/qtER2bh (noting that “custodial,

25 maintenance, laundry” and “grounds keeping” are among the most common jobs for

26

incarcerated people); North Carolina Dept. of Corrections, North Carolina Prison Inmates at Work, https://cutt.ly/jtERCbb (noting that cleaning the grounds and facilities is one of

27 the jobs of incarcerated persons in North Carolina).

28

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1 certainly an undercount.56 BJS also reports that people in jail are disproportionately

2 affected by many of the specific conditions that increase risk of COVID-19 complications

3 or death.57

4

42. Outbreaks of the flu regularly occur in jails. During the H1N1 epidemic in

5 2009, jails and prisons dealt with a disproportionately high number of cases.58

6

43. Numerous public health experts, including Dr. Gregg Gonsalves,59 Ross

7 MacDonald,60 Dr. Marc Stern,61 Dr. Oluwadamilola T. Oladeru and Adam Beckman,62 Dr.

8

9

10

11

12
13 56 Jennifer Bronson et al., Special Report: Disabilities Among Jail and Prison Inmates, 2011-12, U.S. Dept. of Justice Bureau of Prison Statistics (Dec. 2015) available at
14 https://www.bjs.gov/content/pub/pdf/dpji1112.pdf.

15 57 Id. at 2-3.

16 58 See, e.g., Exhibit K, Meyer Decl., supra note 52 at ¶ 19; Exhibit J, Golob Decl., supra note 37 at ¶ 13. This H1N1 “swine flu” pandemic outbreak spread dramatically in jails and
17 prisons in 2010, but that strain of virus had a low fatality rate because of the characteristics
18 of the virus—COVID-19’s fatality rate is far higher. David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010),
19 https://cutt.ly/ytRSkuX.

20 59 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak,

21 Connecticut Mirror (Mar. 11, 2020), https://cutt.ly/BtRSxCF.

22 60Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (Mar. 19, 2020), https://cutt.ly/ptRSnVo.
23 61 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions

24 in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (Mar. 5, 2020),

25 https://cutt.ly/EtRSm4R.

26

62 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HealthAffairs (Mar. 10, 2020),

27 https://cutt.ly/QtRSYNA.

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1 Anne Spaulding,63 Dr. Homer Venters,64 Jaimie Meyer,65 the faculty at the Johns Hopkins

2 schools of nursing, medicine, and public health,66 and Josiah Rich67 have all strongly

3 cautioned that people booked into and held in jails are likely to face serious, even grave,

4 harm due to the outbreak of COVID-19.

5

44. The CDC is a federal agency that is part of the U.S. Department of Health

6 and Human Services. It serves as the national focus for developing and applying disease

7 prevention and control, environmental health, and health promotion and health education

8 activities designed to improve the health of the people of the United States. The CDC is

9 responsible for controlling the introduction and spread of infectious diseases, and provides

10 consultation and assistance to other nations and international agencies to assist in

11 improving their disease prevention and control, environmental health, and health

12 promotion activities. It also provides program expertise and assistance in responding to

13 Federal, State, local, and private organizations on matters related to disease prevention and

14 control activities.68

15

16

17

18

63 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (Mar. 9, 2020),

19 http://www.chip.sph.emory.edu/documents/For%20Correctional%20Facility%20Leaders

20 hip_2020.pdf . 64 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother
21 Jones (Mar. 12, 2020), https://cutt.ly/jtRSPnk.

22 65 Exhibit K, Meyer Decl., supra note 52.

23 66 Supra note 36.

24 67 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus

25 Impact on Prisons, The Guardian (Mar. 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH.

26

68 Centers for Disease Control and Prevention, Mission Statement, https://www.cdc.gov/about/organization/cio-orgcharts/pdfs/CDCfs-508.pdf (last visited

27 Apr. 28, 2020).

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1

45. Because of the extraordinary danger that COVID-19 will spread in jails and

2 prisons, the CDC has issued specific guidance for dealing with correctional and detention

3 facilities, including local jails.69 The guidance was published on March 23, 2020. It

4 acknowledges that incarcerated people are forced to exist “within congregate

5 environments” that “heighten[] the potential for COVID-19 to spread once introduced,”

6 especially given that “[t]here are many opportunities for COVID-19 to be introduced into

7 a correctional or detention facility,” including “daily staff ingress and egress” as well as

8 “high turnover” of “admit[ted] new entrants.” In light of these concerns, the guidance

9 recommends that detention facilities “explore strategies to prevent over-crowding of

10 correctional and detention facilities during a community outbreak.” The guidance further

11 recommends that the correctional facilities:

12

a. Post signage throughout the facility communicating COVID-19

13

symptoms and hand hygiene instructions, ensure such signage is

14

understandable for non-English speaking people as well as those with

15

low literacy, and provide clear information about the presence of

16

COVID-19 cases within a facility and the need to increase social

17

distancing and maintain hygiene precautions;

18

b. Ensure sufficient stocks of hygiene and cleaning supplies, including

19

tissues; liquid soap where possible; hand drying supplies; alcohol-

20

based hand sanitizer; cleaning supplies effective against the

21

coronavirus; and recommended personal protective equipment like

22

face masks, disposable medical gloves, and N95 respirators;

23

c. Provide incarcerated people no-cost access to soap (providing liquid

24

soap where possible), running water, hand drying machines or

25

disposable paper towels for hand-washing, and tissues (providing no-

26

27 69 CDC, Interim Guidance, supra note 40.

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1

touch trash receptacles for disposal);

2

d. Suspend co-pays for incarcerated people seeking medical evaluation

3

for respiratory symptoms;

4

e. Even if COVID-19 cases have not been identified locally or inside,

5

implement “intensified cleaning and disinfecting procedures” that

6

clean and disinfect high-touch surfaces and objects “[s]everal times

7

per day,” and ensure adequate supplies to support intensified cleaning

8

and disinfection practices”;

9

f. Perform pre-intake screening and temperature checks for all new

10

entrants;

11

g. Adopt social distancing strategies to increase space between

12

individuals, including rearranging bunking to ensure that beds are at a

13

minimum six feet apart in all directions, increasing space in lines and

14

waiting areas, staggering meals and rearranging seating during meals

15

so that detainees are sitting on only one side of the table and are

16

separated with adequate space;

17

h. Medically isolate confirmed and suspected cases and quarantine of

18

contacts.

19

46. According to the CDC, “[f]acilities should make every possible effort to place

20 suspected and confirmed COVID-19 cases under medical isolation individually.”70

21 Further, quarantined individuals should be “housed separately, in single cells with solid

22 walls . . . and solid doors that close fully.”71 Cohorting should only be considered as a last

23 resort, and even then all incarcerated people must have enough room to retain at least 6

24 feet of space between each other at all times. If a facility has no option but to implement

25 cohorting, it must do so while following several strict precautions. These precautions

26

27 70 Id. 28 71 Id.

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1 include mandating that individuals wear face masks at all times, ensuring that individuals

2 with laboratory-confirmed cases are not mixed with individuals who have not tested

3 positive, and ensuring that individuals with respiratory problems are not cohorted “unless

4 no other possibilities exist.”72

5

C. Defendants’ Actions Have Been Inadequate to Protect People

6

Incarcerated in the Orange County Jail From These Risks of Infection.

7

47. The OCSD’s response has been inadequate to curtail the rampant spread of

8 COVID-19 through the Jail. It has not complied with the majority of the CDC Guidelines

9 despite the increasing number of infections in the Orange County Jail since these guidelines

10 were first issued. Without further action, it is likely that the epidemic inside the Orange

11 County Jail will worsen rapidly.

12

48. As of April 28, 2020 there are 45,031 confirmed cases of COVID-19 in

13 California,73 with 2,151 confirmed cases in the Orange County area.74 To date, there have

14 been 1,809 deaths from COVID-19 in California alone,75 with 42 deaths in Orange

15 County.76 The Governor of California has declared a statewide emergency,77 as have local

16

17

18

19 72 Id.

20 73 California Department of Public Health, California COVID-19 By The Numbers, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx.
21 74 OC Health Care Agency, COVID-19 What You Should Know,
22 https://occovid19.ochealthinfo.com/.

23 75 Supra note 73.

24 76 Supra note 74.

25 77 Office of Governor Gavin Newsom, Governor Newsom Declares State of Emergency to

26

Help State Prepare for Broader Spread of Covid-19, (Mar. 4, 2020), https://www.gov.ca.gov/2020/03/04/governor-newsom-declares-state-of-emergency-to-

27 help-state-prepare-for-broader-spread-of-covid-19/.

28

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1 Orange County officials.78 Governor Newsom directed a statewide stay at home order,

2 requiring all Californians to stay home if not performing essential activities.79

3

49. The Orange County Jail consists of four physically separate facilities that

4 operate as a single system. There is constant movement of staff and incarcerated people

5 among each of the four facilities, widening the circles of potential outbreak and exposure.

6 These facilities include the Men’s Central Jail, the Women’s Central Jail, the Theo Lacy

7 Facility, and the Intake and Release Center. Each of these facilities is configured differently

8 and has a different type of housing.80 The rated capacity of each facility is determined on

9 a biannual basis by the California Board of State and Community Corrections (BSCC), an

10 independent statutory agency that, inter alia, inspects local correctional facilities in

11 California for compliance with Title 15 regulations, which set minimum standards for these

12 facilities.81 The rated capacity of a facility means the maximum number of incarcerated

13 occupants for which a facility’s cells or dormitories, except those dedicated for health care

14 or disciplinary separation housing, were planned and designed in conformity to Title 15

15 regulations (maintained by BSCC) and Title 24 regulations (maintained by the California

16

17 78 Brittany Martin, Why Orange County has Declared a Coronavirus Emergency, Los Angeles Magazine, (Feb. 27, 2020), https://www.lamag.com/citythinkblog/orange-county-
18 coronavirus-emergency/.

19 79 Office of Governor Gavin Newsom, Governor Gavin Newsom Issues Stay at Home

20 Order (Mar. 19, 2020), https://www.gov.ca.gov/2020/03/19/governor-gavin-newsomissues-stay-at-home-order/.

21 80 See generally, State of California Board of State and Community Corrections 2016-2018

22 Biennial Inspection: Orange County’s Type II and Court Holding Facilities, Penal Code

23

Section 6031 (Sep. 26. 2018), https://drive.google.com/file/d/1hE41vMsJa3S06bW8PGSTwS3DWpPbzj5/view?usp=sharing.

24 81 Board of State and Community Corrections, About the Board of State and Community

25 Corrections (last visited Apr. 28, 2020), http://www.bscc.ca.gov/m_bsccboard/; BSCC,

26

Title 15 Minimum Standards for Local Detention Facilities (effective Oct. 1, 2019), http://www.bscc.ca.gov/wp-content/uploads/Adult-Title-15-Regulations-Effective-

27 10.1.2019.pdf.

28

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1 Building Standards Commission).82 Theo Lacy has a rated capacity of 2,080 occupants. It

2 is composed of a large number of barrack style dorms, seven module units where people

3 are housed in two-person cells that share common day rooms and shower facilities, and

4 two module units where people are housed in single-person cells that share common day

5 rooms and shower facilities.83 The Men’s Central Jail has a rated capacity of 1,219

6 occupants. It is composed primarily of module units where people are housed in cells that

7 vary in size from four to eight occupants; occupants share toilet and shower facilities.84

8 There are also dormitory style units where occupants share common day rooms, shower,

9 and toilet facilities.85 The Women’s Central Jail has a rated capacity of 274 occupants. It

10 is composed primarily of dormitory style units which sleep up to 30 occupants in one unit,

11 where occupants share toilet and shower facilities.86 There is also one unit where people

12 are housed in single cells and share shower facilities.87 The Intake and Release Center has

13 a rated capacity of 407 occupants. It is composed primarily of module units where people

14 are housed in single-person cells that share common day rooms and shower facilities.88

15 Collectively, the Orange County Jail has a total of 51 medical isolation cells.89

16

50. Given the current population, social distancing in these facilities is not

17 possible. People in the Orange County jail are regularly housed in group barracks or in

18

19 82 BSCC, Title 15 Minimum Standards, supra at 12.

20 83 See id. at 50–56.

21 84 See id. at 47–40.

22 85 Id.

23 86 See id. at 44–45.

24 87 Id.

25 88 See id. at 26–32.

26

89 See id. at 26–56. There are 15 medical isolation cells in the Women’s Central Jail and 26 at the Theo Lacy Facility. There are no medical isolation cells at the Men’s Central

27 Jail or the Intake and Release Center.

28

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1 multiple-person cells (often containing as many as 8 bunks in each cell) that share

2 dayrooms with other cells. The largest number of people are housed in the Theo Lacy

3 facility, which consists largely of large barrack-style dorms.90 People in barracks sleep in

4 bunk beds in close proximity to each other, much closer than six feet apart.91 People in

5 multi-person cells sleep in similarly close proximity.92 Even persons who are detained in

6 single or double bunked cells often remain constantly in close proximity and air space with

7 others in their modules.93 Housing units in jails generally lack adequate ventilation, a

8 factor that facilitates the likelihood of airborne transmission of COVID-19.94 Some cells

9 have open bars and many open directly into communal day rooms. Detainees congregate

10 in groups in the day rooms, often in numbers too large for social distancing.95 They share

11

12

13

14 90 See supra note 81.
15 91 Exhibit L, Declaration of Dalton James Cardone ¶ 7 (before quarantine, slept with a large 16 group, may 60 people, in an open dorm); Exhibit D, Hernandez Decl. ¶ 7 (“[t]he beds are
very close together, only a couple of inches apart” and his feet touch his cellmates’ feet 17 while sleeping).

18 92 Exhibit C, Ahlman Decl. ¶ 7 (“Our bunks are about two feet from one another.”); Exhibit 19 D, Hernandez Decl. ¶ 7 (“The beds are very close together, only a couple of inches apart.
If people sleep with their heads facing each other, their heads will touch. I sleep with my 20 feet facing a cellmate’s feet, and our feet touch each other’s during the night.”).

21 93 Exhibit M, Declaration of Mark Trace ¶ 7 (all of the cells in the module have open bars

22 and share the same air); Exhibit N, Declaration of Fernando Maldonado ¶ 11 (“Our bunks are so close that we can reach other’s bunk when we lay down.”); Exhibit O, Declaration

23 of Sean S. Wells ¶ 9 (“It is impossible for my cellmate and I to maintain six feet distance

24 from each other when we are confined in our cell, which is about 21 hours a day.”).

25 94 Exhibit H, Goldenson Decl. ¶ 19.

26

95 Exhibit C, Ahlman Decl. ¶ 22.; Exhibit A, Wagner Decl. ¶ 16 (entire module shares day room, 8 people at a time together); Exhibit P, Declaration of Cecibel Caridad Ortiz ¶ 6

27 (dayroom shared by 7 people in module, without enough space to keep six feet apart).

28

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1 phones “basically shoulder to shoulder with each other,”96 and share communal shower

2 spaces.97 Many detainees must also share communal toilets.98

3

51. The jail relies on incarcerated people to perform much of the work of laundry,

4 food preparation and distribution across the jail.99 Incarcerated people prepare and cook

5 the food and serve meals in the chow hall at Theo Lacy, where large groups of people

6 continue to congregate for a hot meal.100 Along with jail staff, they deliver meals and

7 laundry to modules in each of the jail buildings.101 They are forced to line up close together

8 to receive mail.102

9

52. Although court hearings have slowed, some hearings are still held in person

10 at the court house and others are at videoconferencing. In both instances, people are

11 brought across the jail from their cells, put in close contact with each other in crowded

12

13 96 Exhibit C, Ahlman Decl. ¶ 21; Exhibit N, Maldonado Decl. ¶ 15 (describing inability to 14 socially distance while using telephones that are “about two feet away from each other.”);
15 Exhibit O, Wells Decl. ¶ 15. 16 97 Exhibit A, Wagner Decl. ¶ 17.
98 Exhibit C, Ahlman Decl. ¶ 24 (“All of the women in the medical tank share two toilets. 17 Sometimes we have to wait in line for these. If we wait in line we can not space out six feet
18 apart.”); Exhibit D, Hernandez Decl. ¶ 10 “We all use the same toilet, shower, and table for eating.”); Id. ¶ 14 (“The phones are [in the dayroom] about three feet away from the
19 table and two feet away from the toilet.”).
20 99 Exhibit M, Trace Decl. ¶¶ 7, 14; Exhibit D, Hernandez Decl. ¶ 23; Exhibit Q, Declaration
21 of Cynthia Campbell ¶ 19; Exhibit A, Wagner Decl. ¶ 13; Exhibit R, Declaration of Julian Miranda, Jr. ¶ 8.
22 100 Orange County California, Grand Jury, Jail Food: Reservation Required, pp. 5-6
23 (describing meal preparation and by detainees).

24 101 Exhibit D, Hernandez Decl. ¶ 19; Exhibit Q, Campbell Decl. ¶ 21; Exhibit S, Declaration

25

of Michael Seif ¶ 18; Exhibit T, Declaration of Jose Armendariz ¶¶ 35 – 27 (describing observing staff and incarcerated workers handle and distribute meals without wearing

26 masks properly, without changing gloves.).

27 102 Exhibit D, Hernandez Decl. ¶ 26.

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1 holding cells, and then returned to their cell modules or barracks without testing or

2 screening.103 Incarcerated people are regularly in close contact with each other and large

3 groups of people on a daily basis.104 The jail guards do not facilitate social distancing

4 standards in common areas, and groups of over forty are regularly gathered during

5 recreational periods.105 Individuals move within and between the facilities.106 Group

6 movements within modules and across the jail “may cluster large numbers of people

7 together in small spaces, increase the risk of transmission between incarcerated persons

8 and throughout the facility.”107

9

53. When individuals at the jail require medical treatment, they must face a

10 gauntlet of crowded lines at the nurses’ stations and medical units.108 Medically at-risk

11
12 103 Exhibit C, Ahlman Decl. ¶ 5 (describing being transported in the middle of March to court with other women, then placed with 15 people in a 10 person holding cell “all on top
13 of each other, for close to two hours.”); Exhibit S, Seif Decl. ¶ 5 (traveling to court on a 14 bus with over 30 people from other sectors, waiting in a holding cell for 7 hours at the
courthouse with 13 people, and then returning to the jail); Exhibit E, Saem Decl. ¶ 7 15 (transported to court in early March with 30 to 40 other people, and held in a holding cell 16 with 30 other people); Exhibit O, Wells Decl. ¶ 12 (describing concern over cellmate’s
possible exposure to virus during a trip to court where he was in “close contact with about 17 20 other people during the day.”)
18 104 Exhibit C, Ahlman Decl. ¶ 5; Exhibit A, Wagner Decl. ¶¶ 6, 8 (people moved into his 19 pod in a large group); Exhibit P, Caridad Ortiz Decl. ¶ 18 (discussing an outside trip to
visit a doctor); Exhibit M, Trace Dec. ¶ 15 (explaining frequent transfers of inmates in and 20 out of unit without quarantine period); Exhibit F, Castillo Decl. ¶¶ 8-11, 13, 21 (discussing 21 exposure while seeking/transiting to and from medical treatment); Exhibit Q, Campbell
Decl. ¶ 14 (describing that she takes a small elevator to rec and others take stairs). 22
105 Exhibit D, Hernandez Decl. ¶ 30. 23 106 Id. ¶ 14 (describing moving to a new building because his cell became a quarantine area 24 and having to take a bus with 40 other people, “bunched up together,” being searched by 25 guards without PPE, and held again in a crowded holding cell for hours). 26 107 Exhibit H, Goldenson Decl. ¶ 23.
108 Exhibit A, Wagner Decl. ¶ 8 (when he goes for daily blood pressure if there is a line 27 “we all sit on a set of stairs right next to each other”); Exhibit O, Wells Decl. ¶ 20
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1 individuals are repeatedly placed in close contact with other people, including those who

2 exhibit COVID-19 symptoms, when they seek routine medical treatment.109 They may be

3 escorted in groups by a guard to the nurses’ station, and must wait on crowded benches to

4 be seen.110

5

54. The conditions are harrowing for women who are nursing. Until late March

6 2020, the women had to travel to the nurses’ office to share the breast pump, even though

7 the space was not cleaned between uses.111 The women decided to start pumping milk in

8 their tanks after learning that COVID-19 had spread throughout the women’s facility, but

9 they must still travel to the nurses’ station multiple times a day to transport their breastmilk.

10 These trips make them nervous because they increase their exposure to the disease,

11 particularly because they must come into contact with people who are seeking treatment

12 for COVID-19 and other illnesses in the medical unit.112

13

55. Potentially contagious persons are housed alongside asymptomatic bunk and

14 cellmates, exacerbating the likelihood of rapid COVID-19 spread. As more and more

15 people in the jail become symptomatic, presumptively healthy detainees must continue to

16 share close quarters with large numbers of symptomatic individuals who have not been

17 isolated or tested despite having symptoms.113 Fever appears to be the sole metric for

18

19

20

(describing it as “impossible to maintain six feet distance from medical and custody staff.”); Exhibit T, Armendariz Decl. ¶ 30 (“While we wait to be seen by an RN, we sit on

21 small dirty benches basically shoulder to shoulder.”).

22 109 Exhibit F, Castillo Decl. ¶¶ 8-11.

23 110 Exhibit Q, Campbell Decl. ¶ 11; Exhibit F, Castillo Decl. ¶ 10.

24 111 Exhibit C, Ahlman Decl. ¶ 11.

25 112 Id. at 12-13.

26

113 Exhibit M, Trace Decl. ¶ 9 (medical personnel denied test, and said it was because Mr. Trace did not have a fever, although he shared ventilation with other detainees in nearby

27 modules who tested positive).

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1 treating detained persons as requiring a change in housing, despite the fact that numerous

2 persons describe common COVID-19 symptoms like headaches, dry coughs or inability to

3 smell.114

4

56. The Orange County Jail has failed to follow the CDC’s guidance with respect

5 to isolation of suspected cases and its use of cohorting.115 Only after people test positive

6 for COVID-19 are they removed from their barrack or modular housing and transferred to

7 isolation. Defendants are not making “every effort to quarantine close contacts of COVID-

8 19 cases individually,” increasing the risk that others will be infected.116 People who have

9 been exposed to positive cases have not always been quarantined and are themselves often

10 still in group settings, where new individuals are added.

11

57. As the jail has sought to isolate or quarantine some symptomatic or confirmed

12 cases, it has failed to adequately protect those who were exposed or remain in large cells

13 or units. Defendants inappropriately move people in and out of cohorts before waiting the

14 full 14 days.117 For example, as new sick individuals are identified, groups of people have

15 been moved between housing units and rearranged in new combinations, and individuals

16

17 114 Exhibit S, Seif Decl. ¶ 7 (despite trouble breathing, headache and likely exposure to a guard who tested positive, Mr. Seif has not been seen by a doctor or tested for COVID-
18 19); Exhibit U, Declaration of Jaime Herrera ¶ 7 (despite headache and exposure to guard

19 with COVID, Mr. Herrera has not been tested); Exhibit M, Trace Decl. ¶ 9.

20 115 Exhibit A, Wagner Decl. ¶ 5.
21 116 Exhibit H, Goldenson Decl. ¶ 45. 117 Exhibit R, Miranda Jr. Decl. ¶¶ 9 –12, 22-25 (while housed in the worker unit A-5, Mr.
22 Miranda was exposed to a person with COVID-19, then placed under group quarantine

23 without a mask where he eventually tested positive for COVID-19. After testing positive,

24

Mr. Miranda was transferred to a two-person cell in a rat-infested filthy module, M-25, where he shares phones and showers, including with some other men who do not have

25 COVID-19); Exhibit L, Cardone Decl. ¶¶ 7-8 (after developing a fever, Mr. Cardone was

26

moved from a 60-person barrack to the R-mod, where he was placed in a 7-day quarantine with 10 other people; he was tested for COVID-19 and when his results were negative he

27 was moved to yet another cohort quarantine in O-41 for another 7 days).

28

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1 who have not tested positive are required to use the same showers and phones with those

2 who have tested positive.118 In dorm or module settings, after the infected individuals have

3 been moved, the jail assigns other detained people to clean the cells of the suspected or

4 confirmed cases without any PPE, increasing their risk of exposure.119

5

58. Recent test results show the dangerous consequences of the Jail’s failures to

6 properly quarantine. Just last week, the Jail expanded its testing to evaluate its quarantined

7 population and 18 of 22 asymptomatic people who were being considered for reintegration

8 into the larger population tested positive.120

9

59. As the disease has spread, and quarantine needs grown, this has put additional

10 pressure on non-quarantined housing units, causing them to become more crowded. Don

11 Wagner, a 68-year-old man with serious medical conditions, was in a unit with 16 people

12 and no cell mate until last week, allowing him to avoid at least some of the dangerous

13 contact of close quarters. But on April 22, 2020, the jail added an additional 16 people to

14 the unit, double bunking every cell, including his.121

15

60. Even in ordinary times, the medical care system in the Orange County jail is

16 overburdened. The medical care system has been further encumbered due to the pandemic.

17 People in the jail must routinely wait long periods of time to receive medical attention even

18

19

20

21

22 118 Exhibit R, Miranda Jr. Decl. ¶ 25.

23 119 Id., at ¶ 9, 12.

24 120 Sareen Habeshian, 18 inmates at O.C. jails test positive for COVID-19, after testing is

25

expanded to asymptomatic people in quarantine, KTLA 5 (Apr. 25, 2020), https://ktla.com/news/local-news/18-inmates-at-o-c-jails-test-positive-for-covid-19-after-

26 testing-is-expanded-to-asymptomatic-people-in-quarantine/.

27 121 Exhibit A, Wagner Decl. ¶ 6.

28

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1 after they request care.122 During the current crisis, medical care in the jails has further

2 slowed, creating heightened risks for patients.123

3

61. Hygiene, information, and nutrition are other areas where the Jail has fallen

4 short. Incarcerated people have been insufficiently informed about the dangers COVID-

5 19 poses and about the safety measures public health officials advise. Although the CDC

6 recommends clear informational signage be posted in all languages spoken in the facility,

7 the Orange County Jail facilities have only provided sporadic and inadequate advisories.124

8

62. The PPE provided by the jail is ineffective, and is used and distributed

9 inadequately and inconsistently. People held in the jail describe the PPE as “swatches of

10 fabric” and not real masks, and explain that guards and workers do not consistently wear

11 them.125 Even in a unit where deputies explicitly told incarcerated people that one of their

12 colleagues had recently contracted COVID-19, many deputies do not wear gloves or

13

14

15 122 Exhibit Q, Campbell Decl. ¶ 8; Exhibit M, Trace Decl. ¶ 8; Exhibit E, Saem Decl. ¶ 11.
16 123 Exhibit C, Ahlman Decl. ¶ ¶ 10-12 (explaining that nursing mothers are no longer able 17 to pump in the nurse’s office and she can no longer get fresh milk to her baby); Exhibit E,
18 Saem Decl. ¶ 11 (requires an eye examination and cannot get one scheduled); Exhibit Q, Campbell Decl. ¶ 8 (despite her serious medical conditions and the fact that she has felt
19 sick for a week and filled out three medical slips, she has not been able to see the doctor).

20 124 Exhibit A, Wagner Decl. ¶ 10 (describing barely audible announcements); Exhibit P,

21

Caridad Ortiz Decl. ¶ 17; Exhibit D, Hernandez Decl. ¶ 29; Exhibit M, Trace Decl. ¶ 12 (announcement difficult to hear); Exhibit E, Saem Decl. ¶ 9.

22 125 Exhibit C, Ahlman Decl. ¶¶ 15, 16, Exhibit A, Wagner Decl. ¶ 11 (describing the PPE

23 as being “just swatches of fabric” that are not regularly replaced); Exhibit Q, Campbell

24

Decl. ¶¶ 16-19; Exhibit D, Hernandez Decl. ¶¶ 17, 18; Exhibit M, Trace Decl. ¶¶ 14, 16 (inconsistent use of PPE by staff and jail workers); Exhibit E, Saem Decl. ¶ 12-13; Exhibit

25 N, Maldonado Decl. ¶ 17 (“Custody staff provided us with torn sheets to use as face

26

coverings.”); Exhibit O, Wells Decl. ¶ 24; Exhibit T, Armendariz Decl. ¶ 27 (described receiving “torn sheets . . . to use as bandanas/face coverings . . .”) and ¶ 28 (“I have seen

27 several deputies not wearing masks.”).

28

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1 masks.126 Incarcerated people have only received minimal PPE. Although some have

2 received masks, those masks were not replaced and have long ceased to function

3 effectively.127

4

63. Incarcerated people are responsible for cleaning their cells, but they are not

5 given adequate supplies to maintain a hygienic space.128

6

64. People in the Jail are becoming physically weakened and more susceptible to

7 disease because they are not receiving adequate nutrition. Many have not received hot

8 food in weeks and are receiving three paper sack meals a day. They describe meals that

9 consist of a few pieces of bread and a chunk of frozen meat.129

10

D. Existing Procedures and Protocols Will Not Be Sufficient to Ensure the

11

Safety of Class Members or the General Public.

12

65. Because of the severity of the threat posed by COVID-19, and its potential to

13 rapidly spread throughout a correctional setting, public health experts recommend the rapid 14 release from custody of people most vulnerable to COVID-19.130 Release protects the

15 people with the greatest vulnerability to COVID-19 from transmission of the virus, and

16 also allows for greater risk mitigation for people held or working in a jail and the broader

17

18 126 Exhibit S, Seif Decl. ¶¶ 9, 12.
19 127 Exhibit P, Caridad Ortiz Decl. ¶¶ 11,12; Exhibit C, Ahlman Decl. ¶ 1; Exhibit D,
20 Hernandez Decl. ¶¶ 17-18; Exhibit M, Trace Decl. ¶ 13; Exhibit F, Castillo Decl. ¶ 18.

21 128 Exhibit C, Ahlman Decl. ¶ 19, 20; Exhibit A, Wagner Decl. ¶ 15; Exhibit P, Caridad
22 Ortiz Decl. ¶ 15; Exhibit D, Hernandez Decl. ¶¶ 11-12; Exhibit M, Trace Decl. ¶ 18; Exhibit F, Castillo Decl. ¶ 19; Exhibit E, Saem Decl. ¶ 16.
23 129 Exhibit C, Ahlman Decl. ¶ 25; Exhibit P, Caridad Ortiz Decl. ¶16; Exhibit D, Hernandez 24 Decl. ¶ 19; Exhibit M, Trace Decl. ¶ 14; Exhibit F, Castillo Decl. ¶ 20.

25 130 Exhibit V, Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 6, Declaration of

26

Marc Stern at ¶¶ 9–10 (noting that release is “a critically important way to meaningfully mitigate” the risks of harm to persons who are at high risk of serious illness or death, as

27 well as to support the broader community health infrastructure).

28

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1 community.131 People who are medically vulnerable at the Orange County Jail are at “a

2 heighted risk for serious illness and death” and “[g]iven the high likelihood of contagion

3 and spread in the jail, the safety of these individuals is a pressing emergency that needs to

4 be addressed on an urgent basis.”132 Release of the most vulnerable people from custody

5 also reduces the burden on the region’s health care infrastructure by reducing the likelihood

6 that an overwhelming number of people will become seriously ill from COVID-19 at the

7 same time.133

8

66. Notwithstanding the fact that the OCSD has released a modest number of

9 people and adopted (at least formally) some precautionary policies to address COVID-19,

10 large numbers of Medically-Vulnerable and Disability Subclass Members continue to be

11 exposed to the dangers of continued detention in the Orange County Jail. Their immediate

12 release remains a necessary public health intervention.134 Further release is needed not

13 only to prevent irreparable harm to members of the Medically-Vulnerable and Disability

14 Subclasses, but also to reduce the incarcerated population sufficiently to ensure proper

15 social distancing to reduce transmission for all class members and the wider public.135

16

17

18 131 Id.

19 132 Exhibit H, Goldenson Decl. ¶ 48; see also, Exhibit I, Parker Decl. ¶¶ 35-36.
20 133 Matthew J. Akiyama et al, Flattening the Curve for Incarcerated Populations - Covid19 in Jails and Prisons, New England Journal of Medicine, (Apr. 2, 2020),
21 https://www.nejm.org/doi/full/10.1056/NEJMp2005687.

22 134 See Exhibit H, Goldenson Decl. ¶ 50.

23 135 Id. Further, in the prison context, the ABA urges that “Governmental authorities in all

24

branches in a jurisdiction should take necessary steps to avoid crowding that… adversely affects the … protection of prisoners from harm, including the spread of disease.” ABA

25 Standards for Criminal Justice: Treatment of Prisoners Am. Bar Ass’n § 23-3.1(b) (3d

26

ed.

2011),

https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Tr

27 eatment_of_Prisoners.pdf.

28

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1

67. Not only has Sheriff Barnes failed to release adequate numbers of medically-

2 vulnerable and disabled people from the jail, OCSD has continued to arrest individuals for

3 low-level offenses and unnecessarily expose them to infection by bringing them into the

4 Orange County Jail where an outbreak has already occurred. Due to decreased court

5 operations, these individuals could wait in the jail for days if not weeks before having an

6 opportunity to see a judge and be released. Maintaining this practice in the midst of the

7 COVID-19 crisis needlessly risks people’s lives and must be ended.

8

68. As a result of the Supreme Judicial Council’s March 30, 2020 Emergency

9 Order extending deadlines for criminal cases, many people recently charged with felonies

10 are being forced to languish in the jail for up to seven days before even being presented to

11 a magistrate judge.136

12

69. The Orange County Jail must respond to and manage the continued risk of

13 harm that the COVID-19 outbreak poses by following CDC137 and other public health

14 guidelines. This requires: (a) providing all incarcerated persons a six-foot radius or more

15 of distance between any other persons, as well as during meals, transportation, court

16 sessions, recreation, counts, and all other activities; (b) instituting a safety plan to manage

17 the COVID-19 outbreak in the Orange County Jail, in accordance with CDC guidelines;

18 (c) making readily available access to sanitation solutions, without charge, for the purposes

19 of cleaning cells, dormitories, laundry, and eating areas, including sufficient soap, and

20 lifting any ban on alcohol-based hygiene supplies (e.g., hand sanitizer, cleaning wipes); (d)

21 providing appropriate COVID-19 testing for all class members, jail staff, and visitors; (e)

22

23 136 Judicial Council of California Statewide Emergency Order by Hon. Tani G. Cantil-

24 Sakauye, Chief Justice of California and Chair of the Judicial Council (Mar. 30, 2020),

25

https://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com /262/files/20202/Statewide%20Order%20by%20the%20Chief%20Justice-

26 Chair%20of%20the%20Judicial%20Council%203-30-2020.pdf.

27 137 CDC, Interim Guidance, supra note 40.

28

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1 waiving all medical co-pays for those experiencing COVID-19-like symptoms; and (f)

2 waiving all charges for medical grievances during the COVID-19 outbreak; (g)

3 quarantining all confirmed or suspected cases of COVID-19 without resorting to cohorting,

4 if possible.138

5

E. Orange County’s Policies, Practices, and Procedures in the Face of

6

COVID-19 Violate the ADA and the Rehabilitation Act.

7

70. Sheriff Barnes’ and Orange County’s actions and inactions in the face of

8 COVID-19 constitute disability discrimination. The Disability Subclasses include

9 everyone in the Medically-Vulnerable Subclasses who is vulnerable because of a disability,

10 as defined under federal law. This includes everyone in the Medically-Vulnerable

11 Subclasses except those vulnerable solely because of age or pregnancy status. All other

12 conditions that increase risk for COVID-19 complications or death—including lung

13 conditions, asthma, heart conditions, diabetes, kidney disease, liver disease, HIV, immune

14 dysfunction, autoimmune disorders, cancer treatment, and history of organ or bone marrow

15 transplantation—are disabilities under federal disability rights laws. People in the Orange

16 County Jail who have any of these conditions are medically-vulnerable people with

17 disabilities protected by the ADA and the Rehabilitation Act, in addition to being protected

18 by the constitutional provisions that protect all medically-vulnerable subclass members.

19 By continuing to detain members of the Disability Subclass, Defendants’ policies and

20 practices violate the ADA and the Rehabilitation Act.

21

71. The ADA and the Rehabilitation Act require all covered entities to provide

22 reasonable modifications in their policies, practices, and procedures in order to give people

23 with disabilities an equal opportunity to benefit from the entity’s programs, services, and

24 activities. Orange County is a covered entity under these laws. Orange County Jail has

25 failed to make modifications to ensure that high-risk people with disabilities can avoid

26 contracting—and possibly dying from—COVID 19. Release of the Disability Subclasses

27

28 138 See Exhibit H, Goldenson Decl. ¶ 23.

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1 is the most appropriate modification of the jail’s program. Absent that, the jail must

2 implement modifications to protect Disabled Subclass members during incarceration,

3 including implementing meaningful social distancing in compliance with CDC guidelines,

4 ensuring full use of PPE, regular testing, and complete quarantine of people who test

5 positive. The ADA and the Rehabilitation Act also prohibit covered entities from using

6 methods of administration that defeat or impair the accomplishment of the objectives of

7 the public entity’s program. For pre-trial detainees, the jail’s main purpose and objectives

8 are to provide required safety and health services while ensuring an individual’s

9 appearance at arraignment and trial. A person who is sickened, unconscious, or killed by

10 COVID-19 will be unable to make such an appearance. By setting up a system where mass

11 infection and resulting harm and death will disproportionately fall on people with

12 disabilities, the jail has failed to establish methods of administration that do not

13 discriminate against people with disabilities.

14

72. As a result of the Orange County Jail’s failures to make reasonable

15 modifications, including release, and its failure to establish a non-discriminatory method

16 of administering its program, people with disabilities are being denied an equal opportunity

17 to participate in the adjudication of their cases and are denied the reasonable modifications

18 they may need to survive this pandemic.

19

IV. CLASS ACTION ALLEGATIONS

20

73. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil

21 Procedure on behalf of themselves and a class of similarly situated individuals.

22

74. Plaintiffs Melissa Ahlman, Daniel Kauwe and Michael Seif seek to represent

23 a class of all current and future detainees in pre-trial custody at the Orange County Jail,

24 including alleged violations of probation or parole, (“Pre-trial Class”), including a subclass

25 of all persons who, by reason of age or medical condition, the CDC has identified as

26 particularly vulnerable to injury or death if they were to contract COVID-19 (“Medically-

27 Vulnerable Pre-trial Subclass”), and a subclass of all persons within the Medically-

28 Vulnerable Pre-trial Subclass who are vulnerable because of a disability as defined in

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1 federal law (“Disability Pre-trial Subclass”). Plaintiffs Daniel Kauwe and Michael Seif are

2 also representatives and members of the Medically-Vulnerable Pre-trial Subclass and the

3 Disability Pre-trial Subclass.

4

75. Plaintiffs Javier Esparza, Pedro Bonilla, Cynthia Campbell, Monique

5 Castillo, Mark Trace, Cecibel Caridad Ortiz and Don Wagner seek to represent a class of

6 all current and future detainees in post-conviction custody, including those serving a term

7 of incarceration pursuant to an adjudicated violation of probation or parole, at the Orange

8 County Jail (“Post-conviction Class”), including a subclass of persons who, by reason of

9 age or medical condition, are particularly vulnerable to injury or death if they were to

10 contract COVID-19 (“Medically-Vulnerable Post-conviction Subclass”), and a subclass of

11 all persons within the Medically-Vulnerable Post-conviction Subclass who are vulnerable

12 because of a disability as defined in federal law (“Disability Post-conviction Subclass”).

13 Plaintiffs Pedro Bonilla, Cynthia Campbell, Monique Castillo, Mark Trace, Cecibel

14 Caridad Ortiz, Don Wagner are also representatives and members of the Medically-

15 Vulnerable Post-conviction Subclass and the Disability Post-conviction Subclass.

16

76. The “Medically-Vulnerable” subclasses are defined as all current and future

17 persons held at the jail over the age of 55, as well as all current and future persons held at

18 the Orange County Jail of any age who experience (a) lung disease, including asthma,

19 chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic

20 conditions associated with impaired lung function; (b) heart disease, such as congenital

21 heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or

22 kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine

23 disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from

24 cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication,

25 or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i)

26 inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or

27 (l) a current or recent (last two weeks) pregnancy.

28

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1

77. The “Disability” subclasses are defined as all current and future members of

2 the Medically-Vulnerable Subclasses who are vulnerable because of a disability as defined

3 under federal disability rights laws. The Disability Subclasses include all members of the

4 Medically-Vulnerable Subclasses except those who are vulnerable solely by reason of age

5 or current or recent pregnancy. People with all other conditions listed in the preceding

6 paragraph are people with disabilities and members of the Disability Subclasses.

7

78. This action has been brought and may properly be maintained as a class action

8 under federal law. It satisfies the numerosity, commonality, typicality, and adequacy

9 requirements for maintaining a class action under Fed. R. Civ. P. 23(a).

10

79. Joinder is impracticable because (1) the classes and subclasses are numerous;

11 (2) the classes and subclasses include future members, and (3) the classes and subclass

12 members are incarcerated, rendering their ability to institute individual lawsuits limited.

13

80. Based on available information, there are at least 40 people in the proposed

14 Pre-trial Class, the proposed Post-Conviction Class, and each proposed subclass. Everyone

15 in the Orange County Jail is a proposed class member. There are approximately 3,336

16 individuals currently incarcerated in the Orange County Jail.139 An estimated 40% of the

17 Pre-trial and Post-conviction Classes would be expected to be members of the Disability

18 subclasses, with an even greater number being a part of each Medically-Vulnerable

19 Subclass.140

20

81. Common questions of law and fact exist as to all members of the proposed

21 classes: all are at unreasonable risk of serious harm from contracting COVID-19 due to the

22 conditions in the Orange County Jail and Defendants’ failure to take reasonable measures

23

24 139 BSCC, Supplemental JPS Reporting Dashboard (last visited Apr. 29,

25 2020)https://app.smartsheet.com/b/publish?EQBCT=82b29a92ea9a4a0ea7aa480f1287e1

26 37.

27

140 U.S. Department of Justice, Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-2012, https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf (39.9% of

28 people in jail have a chronic conditions).

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1 to assure their safety from the disease, and all have a right to receive adequate COVID-19

2 prevention, testing, and treatment.

3

82. Questions of fact common to all proposed class members include whether the

4 conditions in the Orange County Jail expose them to heightened risk of contracting

5 COVID-19, and whether social distancing is possible with the current jail population.

6 Questions common to all members of the subclasses include whether the conditions in the

7 Orange County Jail expose them to heightened risk of serious illness, injury, or death and

8 whether the jail’s policies and practices discriminate against people with disabilities in

9 violation of federal disability rights laws. Questions of law common to all proposed class

10 and subclass members include what relief is necessary to mitigate the risks posed by their

11 confinement in the Orange County Jail.

12

83. Plaintiffs’ claims are typical of the class and the subclass members’ claims.

13 Defendants have placed them at significant risk of harm by failing to take appropriate steps

14 to address the risk of contracting, and being rendered seriously ill or injured by, COVID-

15 19 in the Orange County Jail. Plaintiffs, like every person in the Jail, face heightened risk

16 of contracting COVID-19 if they are not adequately protected by Defendants.

17

84. Named Plaintiffs have the requisite personal interest in the outcome of this

18 action and will fairly and adequately protect the interests of the class. Plaintiffs have no

19 interests adverse to the interests of the proposed class. Plaintiffs retained pro bono counsel

20 with experience and success in the prosecution of civil rights litigation. Counsel for

21 Plaintiffs know of no conflicts among proposed class members or between counsel and

22 proposed class members.

23

85. Defendants have acted on grounds generally applicable to all proposed class

24 members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek

25 class certification under Rule 23(b)(2).

26

86. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because

27 prosecuting separate actions would create a risk of inconsistent or varying adjudications

28

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1 with respect to individual class members that would establish incompatible standards of

2 conduct for the party opposing the proposed classes.

3 V. ARGUMENT
4

5

A. Plaintiffs’ Incarceration Amidst the Current COVID-19 Outbreak in

the Orange County Jail Violates their Right to Constitutional

6

Conditions of Confinement.

7

87. It is well-settled that, under the Eighth and Fourteenth Amendments, jail

8 officials have a constitutional obligation to keep detainees safe and to address their medical

9 needs. See DeShaney v. Winnebago Cty Dept. of Soc. Servs., 489 U.S. 189, 200 (1989)

10 (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s

11 liberty that it renders him unable to care for himself, and at the same time fails to provide

12 for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable

13 safety—it transgresses the substantive limits on state action set by the Eighth Amendment

14 and the Due Process Clause.” ); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (the state

15 has an “unquestioned duty to provide . . . adequate . . . medical care” for detained persons);

16 Wilson v. Seiter, 501 U.S. 294, 300 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976);

17 Brown v. Plata, 563 U.S. 493, 531-32 (2011); Farmer v. Brennan, 511 U.S. 825, 834

18 (1994) (remanding for determination of whether correctional officer violated Eighth

19 Amendment by failing to prevent “a substantial risk of serious harm”).141

20

88. This obligation requires jail officials, like Sheriff Barnes, to protect detainees

21 from dangerous infectious diseases like COVID-19. This obligation to protect detainees

22

23

24 141 Plaintiffs and Class Members are both pre-trial and post-conviction detainees. The

25

Fourteenth Amendment’s Due Process Clause governs conditions-of-confinement claims like these for pre-trial detainees, while the Eighth Amendment governs post-conviction

26 detainees. While it is clear that pre-trial detainees are presumed innocent and therefore

27

merit greater protection, see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979), the distinction is irrelevant here: the harms of actual and potential COVID contraction alleged herein

28 clearly satisfy the Eighth Amendment’s more restrictive standard.

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1 exists before any incarcerated people test positive for the virus and before an outbreak

2 begins. Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment

3 protects against future harm to inmates is not a novel proposition. . . . It would be odd to

4 deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in

5 their prison on the ground that nothing yet had happened to them”); see also Farmer, 511

6 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and

7 foreclosed their access to outside aid, the government and its officials are not free to let the

8 state of nature take its course.”).

9

89. Acting fast is imperative. Before a detainee shows symptoms, they will have

10 almost certainly have already infected many others, who may, in turn, have spread it

11 further.142

12

90. Jail officials violate their affirmative obligations to keep incarcerated people

13 safe by showing “deliberate indifference” to a substantial risk of serious harm. Wilson,

14 501 U.S. at 303.143 Corrections officials are deliberately indifferent when they “ignore a

15 condition of confinement that is sure or very likely to cause serious illness and needless

16 suffering [in] the next week or month or year,” even when “the complaining inmate shows

17

18

19 142 CDC, Symptoms of Coronavirus, (last visited Apr. 20, 2020),

20

https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/symptoms.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavi

21 rus%2F2019-ncov%2Fabout%2Fsymptoms.html (noting a 2-14 day incubation period for

22 COVID-19). 143 The Eighth Amendment sets a floor of “deliberate indifference,” while the Fourteenth
23 Amendment provides additional protections. Youngberg v. Romeo, 457 U.S. 307, 315-16

24 (1982) (“If it is cruel and unusual punishment to hold convicted criminals in unsafe

25

conditions, it must be unconstitutional to confine the involuntarily committed--who maybe not be punished at all--in unsafe conditions”); Young v. King Cty., No. 02-cv-35181, 2003

26 WL 21675319, at *2 (9th Cir. July 17, 2003) (“Equal protection does not allow pretrial

27

detainees to be unjustifiably held in conditions worse than those under which convicted prisoners are held.”). For the purposes of this request for expedited relief, plaintiffs will

28 demonstrate that the sheriff’s actions violate the lower standard of deliberate indifference.

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1 no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a 2 cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, 3 exposed him to [conditions] that pose an unreasonable risk of serious damage to his future 4 health”) Id. at 35 (emphasis added); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) 5 (citing Farmer, 511 U.S. at 842) (court “may infer the existence of [deliberate indifference] 6 from the fact that the risk of harm is obvious”); Foster v. Runnels, 554 F.3d 807, 812 (9th 7 Cir. 2009) (finding that depriving an inmate of 16 meals over 23 days was a “sufficiently 8 serious” violation of the Eighth Amendment). Under the Eighth Amendment, an official 9 is deliberately indifferent if “he knows that inmates face a substantial risk of serious harm 10 and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. 11 Brennan, 511 U.S. 825, 847 (1994). For pretrial detainees, the inquiry is a purely objective 12 one, looking to the following elements and asking whether: 13

14

(i) the defendant made an intentional decision with respect to

15

the conditions under which the plaintiff was confined; (ii) those

16

conditions put the plaintiff at substantial risk of suffering

17

serious harm; (iii) the defendant did not take reasonable

18

available measures to abate that risk, even though a reasonable

19

official in the circumstances would have appreciated the high

20

degree of risk involved--making the consequences of the

21

defendant’s conduct obvious; and (iv) by not taking such

22

measures, the defendant caused the plaintiff’s injuries.144

23

24

91. This is exactly what corrections officials are doing in Orange County with

25 respect to COVID-19. Despite knowledge of the risks, they intentionally continue to

26 incarcerate Class Members, including Medically-Vulnerable Subclass Members, in

27

28 144 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).

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1 circumstances that do not comply with public health recommendations. This confinement

2 puts the Class Members at substantial risk of contracting COVID-19. The Defendants have

3 not taken available mitigation measures, even though they must appreciate the obvious

4 consequences of their conduct.145 Jail officials have been living under one of the nation's

5 strictest stay-at-home orders for over five weeks;146 the risk COVID-19 poses to the

6 community, including Class Members, is obvious. By failing to release Medically-

7 Vulnerable Subclass Members and failing to implement the necessary distancing and

8 hygiene measures, the Defendants injure Plaintiffs and Class Members by putting them at

9 significant risk of COVID-19. Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014) (“[W]e

10 have repeatedly recognized that prison officials are constitutionally prohibited from being

11 deliberately indifferent to policies and practices that expose inmates to a substantial risk of

12 serious harm.”).147

13

92. Defendants are well aware of the risks posed by their practices, as they have

14 repeatedly been warned of these risks, including by Sheriff Barnes’s own deputies. In an

15 April 27 letter, Charles G. Barfield, General Manager of the Orange County Employees

16 Association, demanded that Orange County provide significantly more substantial PPE for

17 jail staff. Barfield specifically noted inadequate supplies of face masks, eye protection,

18 respirators, and isolation gowns. He further demanded that the County provide staff with

19

20 145 Jeremy B. White, Newsom Orders All 40M Californians to Stay Home in Nation’s

21 Strictest

State

Lockdown,

Politico

(Mar.

19,

2020),

22 https://www.politico.com/states/california/story/2020/03/19/newsom-orders-all-40mcalifornians-to-stay-home-in-nations-strictest-state-lockdown-1268248.
23 146 Id.

24 147 Diane Solis, Immigration Detention Center in North Texas Erupts in COVID-19 Cases,

25 Dallas News (Apr. 21, 2020), https://www.dallasnews.com/news/public-

26

health/2020/04/20/immigrant-detention-center-in-alvarado-erupts-in-covid-19-cases/ (“The evidence suggests systemwide inaction that goes beyond a mere ‘difference of

27 medical opinion or negligence.’”).

28

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1 free COVID-19 testing “in light of the significant COVID-19 outbreak in the jails.”148 On

2 March 12, 2020, Sheriff Barnes received a letter from the ACLU of Southern California

3 regarding the risks of COVID-19 infections and urging him to adopt policies to address

4 these risks.149 On March 17, 2020, Sheriff Barnes received a letter from numerous local

5 organizations urging him to take action.150 On March 25, 2020, Sheriff Barnes received a

6 letter from the Association of Orange County Deputy Sheriffs asking him to take more

7 steps to protect staff from COVID-19.151 On April 6, 2020, Sheriff Barnes received another

8 letter from numerous local organizations urging him to act immediately to release more

9 people from custody.152

10

93. COVID-19 is “sure or very likely to cause serious illness,” and waiting even

11 a week to aggressively implement mitigation efforts may be too long. See supra ¶¶48-65.

12 Here, the harmful “condition of confinement” is the confinement itself. In the face of a

13 disease with a lengthy incubation period and a high rate of contagion, there are no

14 mitigation efforts that can be undertaken that will prevent spread and infection and death

15 better than immediately releasing detainees.153 In addition to immediately releasing, at

16 minimum, the Medically-Vulnerable Subclass Members, the jail must implement the

17

18 148 Exhibit W, Letter from Charles G. Barfield, General Manager, Orange County 19 Employees Association to Frank Kim, County Executive Officer (Apr. 27, 2020).

20 149 Exhibit X, Letter from Jacob Reisberg and Daisy Ramirez, ACLU of Southern

21

California, to Sheriff-Coroner Donald Barnes, Re: COVID-19 Policy in Orange County Jails (Mar. 12, 2020).

22 150 Exhibit Y, Letter from Transforming Justice, et al., to Sheriff Don Barnes, et al., Re:

23 COVID-19 Containment in Orange County Jails and Courthouses (Mar. 17, 2020).

24 151 Exhibit Z, Letter from Tom Dominguez, Ass’n of Orange County Deputy Sheriffs, to Sheriff Don Barnes (Mar. 25, 2020).
25 152 Exhibit AA, Letter from Transforming Justice Orange County, et al., to Sheriff Don
26 Barnes, et al., Re: COVID-19 in Orange County Jails (Apr. 6, 2020).

27 153 Exhibit I, Parker Decl. ¶¶ 35-36; see also, Exhibit H, Goldenson Decl. ¶ 48.

28

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1 CDC’s guidance on preventing disease spread. Failure to release at least all Medically-

2 Vulnerable Subclass Members and to implement these public health recommendations154

3 constitutes deliberate indifference. See, e.g., Hare v. City of Corinth, Miss., 74 F.3d 633,

4 644 (5th Cir. 1996) (“even where a State may not want to subject a detainee to inhumane

5 conditions of confinement or abusive jail practices, its intent to do so is nevertheless

6 presumed when it incarcerates the detainee in the face of such known conditions and

7 practices.”); Wilson v. Williams, No. 20-cv-794, 2020 WL 1940882 (N.D. Ohio Apr. 22,

8 2020) (ordering enlargement155 of medically vulnerable prisoners after finding that the

9 prison’s failure to separate “inmates at least six feet apart, despite clear CDC guidance for

10 some time that such measures are necessary to stop the spread and save lives” constitutes

11 deliberate indifference).156

12

94. Relatedly, pre-trial detainees have a constitutional right to pre-trial

13 confinement that does not amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979)

14 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication

15 of guilt in accordance with due process of law.”).157 Punishment is established if the jailer’s

16

17 154 “Lack of resources is not a defense to a claim for prospective relief because prison
18 officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations.” Peralta v. Dillard, 744 F.3d 1076, 1083 (9th
19 Cir. 2014).

20 155 Enlargement is a power available to courts in habeas actions that permit it to “‘enlarge’

21

the custody of a defendant” by altering the place of custody. Wilson, 2020 WL 1940882 at *4. In Wilson, the district court ordered the defendant Bureau of Prisons to transfer the

22 medically vulnerable prisoners out of custody by evaluating their transfer to home release,

23

parole or community supervision, or if necessary, another BOP facility where social distancing could be accomplished. Id., at *11.

24 156 See also Public Health Experts’ Declarations; CDC, Interim Guidance, supra note 40

25 (recommending cleaning and disinfecting surfaces several times a day, providing no cost

26 personal hygiene items, and implementing social distancing). 157 Santana v. Collazo, 714 F.2d 1172, 1180 (1st Cir. 1983) (“For an individual not
27 convicted of a crime, however, restrictions on his liberty beyond his initial incarceration

28

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1 conduct is not rationally related to, or is excessive in relation to, a legitimate, nonpunitive

2 government purpose. Id. at 561; Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74

3 (2015).

4

95. Both elements are satisfied here. Even if the jail’s current lack of social

5 distancing, inadequate testing, lack of hygiene and PPE, and lack of quarantining may serve

6 legitimate, nonpunitive interests in normal times, those procedures are now exposing

7 people to potentially lethal risks in the Orange County Jail.158 See Demery v. Arpaio, 378

8 F.3d 1020, 1030 (9th Cir. 2004) (“Nothing in Bell requires that, to be punishment, a harm

9 must be independently cognizable as a separate constitutional violation.”). “[T]o constitute

10 punishment, the harm or disability caused by the government’s action must either

11 significantly exceed, or be independent of, the inherent discomforts of confinement.” Id.

12 Ongoing and increasing risk of death from a serious respiratory illness exceeds and is

13 independent of “the inherent discomforts of confinement.” Id. Continuing to detain

14 Plaintiffs and putative class members in these extremely dangerous conditions is not

15

16 must be reasonably related to some legitimate government objective—of rehabilitation,

17

safety or internal order and security.”); Lareau v. Manson, 651 F.2d 96, 104 (2d Cir. 1981) (“The only conceivable purpose overcrowding in the HCCC serves is to further the state's

18 interest in housing more prisoners without creating more prison space. This basically

19

economic motive cannot lawfully excuse the imposition on the presumptively innocent of genuine privations and hardship over any substantial period of time.”); Vella v. State of

20 Va., 805 F.2d 394, 394 (4th Cir. 1986) (allowing pre-trial detainee to prove allegations

21

establishing conditions as punishment) (“Nor can we say on the current state of the record that it is beyond doubt that Vella can prove no set of facts entitling him to relief.”); Parker

22 v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (ordering evidentiary hearing on whether

23

transfer to more violent wing was punitive); Smith v. Dart, 803 F.3d 304, 312 (7th Cir. 2015) (allegation that pre-trial detainee’s “[f]ood is well below nutritional value” sufficient

24 to survive motion to dismiss on claim that conditions of confinement amounted to

25

punishment under Fourteenth Amendment); White v. Monohan, 326 Fed. Appx. 385, 388 (7th Cir. 2009) (allegations that bug bites left sores and injuries were sufficient to state a

26 claim).

27 158 Exhibit I, Parker Decl. ¶¶ 35-36; see also, Exhibit H, Goldenson Decl. ¶ 48.

28

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1 rationally related to goals of health, safety, or even cost efficiency, and is excessive in

2 relation to those goals. For these reasons, the California Judicial Council has issued

3 advisories encouraging state courts to increase releases from jails, and the California

4 Attorney General has clarified that county sheriffs have full statutory authority to release

5 people from custody in response to the COVID-19 emergency.159

6

96. Other Courts have granted similar relief. Memorandum and Order, Thakker

7 v. Doll, No. 20-CV-0480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020), Doc. No. 47 at 2

8 (categorically releasing petitioners who “suffer[] from chronic medical conditions and

9 face[] an imminent risk of death or serious injury if exposed to COVID-19”); Temporary

10 Restraining Order and Order to Show Cause, Castillo v. Barr, No. CV-20-00605 (TJH)

11 (AFM) (C.D. Cal. Mar. 27, 2020), Doc. No. 32 at 10 (releasing two ICE detainees where

12 they were not “kept at least six feet apart from others at all times.”); Doe v. Barr, No. 20-

13 cv-02141-LB, 2020 WL 1820667, at *9 (N.D. Cal. 2020) (releasing an immigration

14 detainee with COVID-19 comorbidities because those in the jail “live in close quarters,

15 cannot practice social distancing, do not have masks, and do not have access to adequate

16 disinfecting and cleaning supplies.”); Memorandum and Order, Hope v. Doll, No. 1:20-cv-

17 562 (M.D. Pa. Apr. 7, 2020) (releasing 22 people and nothing that staff “do not reliably

18 wear gloves and masks[,] . . . temperature check are infrequently conducted,” and that cell

19 blocks were not cleaned to prevent spread); Ortuño v. Jennings, No. 20-CV-02064-MMC,

20

21 159 See Advisory from California Chief Justice Tani Cantil-Sakauye to Presiding Judges

22 and Court Executive Officers of the California Courts (Mar. 20, 2020),

https://newsroom.courts.ca.gov/news/california-chief-justice-issues-second-advisory-on23 emergency-relief-measures (encouraging the state’s superior courts to, among other things:

24 “[c]onsider a defendant’s existing health conditions, and conditions existing at the

25

anticipated place of confinement, in setting conditions of custody for adult or juvenile defendants”; “[i]dentify detainees with less than 60 days in custody to permit early release,

26 with or without supervision or community-based treatment.”); Attorney General of

27

California, Information Bulletin: COVID-19 and Statutory Authority Under Government

Code

Section

8658

(Apr.

14,

2020),

28 https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/2020-dle-05.pdf?.

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1 2020 WL 1701724, at *4 (N.D. Cal. Apr. 8, 2020) (releasing three ICE detainees because

2 people in the jail “cannot practice meaningful social distancing” and “have not been

3 provided with masks.”); Minute Order in Chambers, Gray v. City. of Riverside, No. 13-

4 CV-00444 (C.D. Cal. Apr. 14, 2020), Doc. No. 191 (releasing defendant where government

5 “failed to demonstrate that it is currently taking adequate precautions to protect the health

6 of the prisoners in the county jails.”); Cameron v. Bouchard, No. 20-cv-10494, 2020 WL

7 1929876, at *2 (E.D. Mich. Apr. 17, 2020) (“It cannot be disputed that COVID-19 poses a

8 serious health risk to Plaintiffs and the putative class.”).

9

B. The ADA and Rehabilitation Act Mandate Release of Disabled Subclasses

10

Amidst the Current COVID-19 Outbreak.

11

97. Title II of the ADA requires that public entities refrain from discriminating

12 against qualified individuals on the basis of a disability. 42 U.S.C. § 12132. Section 504

13 of the Rehabilitation Act imposes parallel requirements on public entities. See Duvall v.

14 Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). In order to avoid disability

15 discrimination in the Orange County Jail in this public health emergency, the only

16 reasonable modification and nondiscriminatory method of administration is release of the

17 Disability Subclasses. Disability Subclass members should be released for the

18 constitutional reasons discussed above, because they are all members of the Medically-

19 Vulnerable Subclass. Disability Subclass members are also protected by federal disability

20 rights laws, which, like the Constitution, mandate release.

21

1. Plaintiffs in the Disability Subclasses and Defendants are Covered

22

by the ADA and Section 504.

23

98. Plaintiffs and Class Members in the Disability Subclasses are protected

24 people with disabilities under the ADA and Section 504. They are all medically vulnerable

25 to COVID-19 complications or death due to their disabilities. “Disability” is defined

26 broadly, to include, inter alia, a “physical or mental impairment that substantially limits

27 one or more major life activities.” 42 U.S.C. § 12102(1)(A). “Major life activity” is itself

28

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1 broadly defined, and includes “the operation of a major bodily function,” such as “functions

2 of the immune system, normal cell growth . . . neurological, brain, respiratory, circulatory,

3 [or] endocrine” systems. 42 U.S.C. § 12102(2)(B). All plaintiffs and Class Members in

4 the Disability Subclasses have disabilities that substantially limit a major life activity or

5 major bodily function.160

6

99. Plaintiffs and Class Members are “qualified” for Defendants’ programs,

7 services, and activities, including adjudication of their cases; safe, constitutional living

8 conditions during confinement; and medical care and rehabilitative services to prepare for

9 reentry after release. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; 28 C.F.R. § Pt. 35, App.

10 B (“[T]itle II applies to anything a public entity does”).

11

100. Orange County is a “public entity” for purposes of the ADA, and is bound

12 to comply with Title II. 42 U.S.C. § 12131(B) (“public entity” includes “any department,

13 agency, special purpose district, or other instrumentality of a State or States or local

14 government”); see also Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).

15

2. Under the ADA and Section 504, the Orange County Jail has an

16

Affirmative Obligation to Ensure Equal and Equally Safe Access

to Programs, Services, and Activities and to Avoid Disability

17

Discrimination Against Disabled Class Members.

18 101. In order to avoid disability discrimination, public entities have an affirmative
19 obligation to ensure that people with disabilities can participate in all of the entity’s
20 programs, benefits, and services on an equal and equally safe basis as people without
21 disabilities. 28 C.F.R. §§ 35.102(a), 35.130(a)-(b); Pierce v. D.C., 128 F. Supp. 3d 250,
22 266 (D.D.C. 2015) (“[B]ecause Congress was concerned that ‘[d]iscrimination against
23 [people with disabilities] was . . . most often the product, not of invidious animus, but rather
24

25 160 Several conditions within the disability subclasses are expressly identified in regulations

26 as presumptively covered disabilities. 28 C.F.R. § 35.108(d)(2)(iii) (“it should easily be

27

concluded” that “[c]ancer substantially limits normal cell growth . . . diabetes substantially limits endocrine function . . . epilepsy . . . substantially limits neurological function . . .

28 HIV infection substantially limits immune function.”

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1 of thoughtlessness and indifference – of benign neglect[,]’ the express prohibitions against

2 disability-based discrimination in Section 504 and Title II include an affirmative obligation

3 to make benefits, services, and programs accessible to disabled people”); id. at 269

4 (“[N]othing in the disability discrimination statutes even remotely suggests that covered

5 entities have the option of being passive in their approach to disabled individuals as far as

6 the provision of accommodations is concerned.”). Public entities must avoid policies,

7 practices, criteria, or methods of administration that have the effect of excluding or

8 discriminating against persons with disabilities. 28 C.F.R. § 35.130(b)(3), (8).

9

102. These affirmative obligations include a requirement that public entities make

10 reasonable modifications to their policies, practices, or procedures where necessary to

11 avoid disability discrimination. 28 C.F.R. § 35.130(b)(7)(i). The ADA also prohibits

12 public entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the

13 effect of subjecting qualified individuals with disabilities to discrimination on the basis of

14 disability” or “[t]hat have the purpose or effect of defeating or substantially impairing

15 accomplishment of the objectives of the public entity’s program with respect to individuals

16 with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii).

17

3. Reasonable modifications, including release of the Disability

18

Subclasses, are required under the ADA and Section 504.

19

103. The Disability Subclasses are entitled to full constitutional protections, as

20 discussed supra, Section III.E; as well as reasonable modifications under disability rights

21 laws to ensure they can participate equally and with equal safety in Defendants’ programs,

22 services, and activities. Defendants’ programs, services, and activities include the safe

23 adjudication of pre-trial detainees’ pending criminal cases, and safe, constitutionally-

24 adequate care, medical treatment, and rehabilitative support during confinement to prepare

25 the person for a safe return to society at the end of their sentence. Disability Subclass

26 members cannot access these equally if they are severely ill, unconscious, or dead. Given

27 the fast-moving, life-threatening nature of the COVID-19 pandemic, immediate release is

28 the only reasonable modification.

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1

104. With respect to the Disability Pre-trial Subclass, Defendants are violating the

2 ADA and Rehabilitation Act by failing to ensure that people incarcerated pre-trial have

3 equal access to the safe adjudication of their cases. Plaintiff Michael Seif and the Disability

4 Pre-Trial Subclass are being held for purely administrative, not punitive, purposes, and are

5 presumed innocent. Bell, 441 U.S. at 535. All members of the Disability Pre-trial Subclass

6 are at high risk of severe complications or death if they contract COVID-19. Orange

7 County and the Jail are in the midst of a widespread COVID-19 outbreak, whose scope is

8 still unknown.

9

105. The Disability Pre-trial Subclass members must be well enough to

10 communicate; must be conscious, and must be alive, in order to have an equal opportunity

11 to participate in the adjudication of their cases. Given the high risk of a widespread

12 COVID-19 outbreak in the Jail, and given this subclass’s high risk of being unable to

13 participate equally in their adjudication if they contract COVID-19, Defendants must

14 release this subclass as a reasonable modification to its administrative detention system to

15 ensure these class members an equal opportunity to participate in their criminal

16 proceedings.

17

106. Put another way, the jail’s current method of administration of its pre-trial

18 incarceration system—including taking no action to release people in light of COVID-19

19 or to adequately prevent or control the infection’s spread—has the effect of discriminating

20 against the Disability Pre-trial Subclass. This Subclass faces disproportionate risk of

21 serious illness, hospitalization, or death from COVID-19, all of which exclude them from

22 participation in the adjudication of their cases on an equal basis as nondisabled people.

23 Release is necessary to ensure equal access to their trials.

24

107. With respect to all Disability Subclass members, Defendants are violating the

25 ADA and the Rehabilitation Act by failing to ensure that disabled detainees—pre-trial and

26 post-conviction—have an equal opportunity to participate in the Jail’s programs, services,

27 and activities, including adequate medical and mental health care, rehabilitative programs,

28 and ultimate release from confinement. The Disability Subclass members cannot equally

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1 access the jail’s programs, services, or activities—including medical care, programming,

2 meals, yard time, and religious gatherings—because all such activities require being in

3 close quarters with other people, posing a disproportionate risk of infection and death. The

4 Disability Subclass members cannot equally access the jail’s programs, services or

5 activities—including receipt of constitutionally adequate minimum care standards to

6 prevent avoidable death, rehabilitative programing, and, ultimately, release—if they are

7 severely ill, unconscious, or dead. Because of their high risk of these catastrophic

8 outcomes—which will inevitably result in exclusion from the jail’s programs—the jail

9 must release them as a reasonable modification, and to avoid unlawful discriminatory

10 methods of administration.

11

108. Release of the Disability Subclasses is a reasonable modification that is

12 consistent with the nature and purpose of the jail, and is not a fundamental alteration. Cf.

13 Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 1003 (E.D. Cal. 2009); Inmates of

14 Allegheny Cnty. Jail v. Peirce, 487 F. Supp. 638, 644 (W.D. Pa. 1980). Jails across the

15 country and the world are releasing people who are particularly vulnerable to severe illness

16 or death from the virus. Indeed, Sheriff Barnes has already released many people as a

17 result of COVID-19, but his actions thus far have left out many people with disabilities for

18 whom release is especially critical. Cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 281 (2d

19 Cir. 2003) (“[t]he reasonableness of the modifications that plaintiffs seek . . . is evidenced

20 by the fact that virtually all are modifications that defendants have long purported … to

21 provide”) (quoting Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 208 n.17 (E.D.N.Y.

22 2000)). Release is consistent with the jail’s purposes, including administratively ensuring

23 pre-trial detainees show up for court, and preparing post-conviction detainees for safe,

24 healthy release into their communities.161 Release is the most effective and reasonable

25

26 161 Orange County Sheriff’s Department, Correctional Programs,

27

https://www.ocsd.org/divisions/custody/inmate/correctional (last visited Apr. 28, 2020) (“Mission: To provide the inmate population . . . the opportunity for an effective,

28 rehabilitative experience following state and federal guidelines.”).

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1 modification to ensure Disability Subclass members are not subject to disability

2 discrimination. If any Disability Subclass members are not immediately released, the ADA

3 and Rehabilitation Act require Defendants to implement reasonable modifications within

4 the jail to reduce the risk of infection among the Disability Subclass members.

5

C. 28 U.S.C. § 2241 is an Appropriate Vehicle to Remedy these Violations.

6

109. Section 2241(c)(3) allows this Court to order the release or enlargement of

7 incarcerated people like Plaintiffs who are held “in violation of the Constitution or the laws

8 or treaties of the United States.” 28 U.S.C. 2241(c)(3); Preiser v. Rodriguez, 411 U.S. 475,

9 484 (1973) (“It is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also

10 from the common-law history of the writ, that the essence of habeas corpus is an attack by

11 a person in custody upon the legality of that custody, and that the traditional function of

12 the writ is to secure release from illegal custody.”); Peyton v. Rowe, 391 U.S. 54, 67 (1968)

13 (Section 2241(c)(3) can afford immediate release for claims other than those challenging

14 the sentence itself).

15

110. This Circuit has held that “mere conditions of confinement” claims may not

16 be brought in habeas actions, a habeas action may be brought when the claim is within “the

17 core of habeas corpus.” See Nettles v. Grounds, 830 F.3d 922, 933-34 (9th Cir. 2016) (en

18 banc) (first quoting Preiser, 411 U.S. at 487; and then citing Crawford v. Bell, 599 F.2d

19 890, 891-92 (9th Cir. 1979)). If a petitioner’s claims would result in “immediate release if

20 successful,” the claims fall “within the core of habeas corpus.” Id. at 928. The Circuit has

21 never addressed the availability of the writ in the current context, where the conditions of

22 confinement themselves render the confinement invalid because, for most Class members,

23 there is no medically sound remedy short of release that can rectify the illegality.

24 Petitioners’ claims are squarely within the “core of habeas corpus” and this is the ideal

25 scenario for the use of the writ. See Jones v. Cunningham, 371 U.S. 236, 243 (1963)

26 (Habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”);

27 Preiser, 411 U.S. at 486 (the writ “has been accepted as the specific instrument to obtain

28 release from [unlawful] confinement.”); Eve Brensike Primus, A Structural Vision of

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1 Habeas Corpus, 98 Cal. L. Rev. 1, 12-14 (an original purpose of habeas was to rectify

2 systemic violations by state actors).

3

4

1. Exhaustion of State Remedies in the Face of COVID-19 Spread is

5

Futile.

6

111. Federal courts apply a judge-made exhaustion doctrine in § 2241

7 cases. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 490 (1973). Unlike the

8 statutory exhaustion requirement in § 2254, though, the judge-made exhaustion

9 requirement for § 2241 petitions is prudential, flexible, and non-jurisdictional. See,

10 e.g., Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir. 2004). The Supreme Court has

11 described the exhaustion doctrine in § 2241 cases as a “judicially crafted instrument which

12 reflects a careful balance between important interests of federalism and the need to preserve

13 the writ of habeas corpus as a ‘swift and imperative remedy in all cases of illegal restraint

14 or confinement.’” Braden, 410 U.S. at 490 (citation omitted).

15

112. This Circuit has held that “[e]xhaustion of administrative remedies is not

16 required where the remedies are inadequate, inefficacious, or futile, where pursuit of them

17 would irreparably injure the plaintiff, or where the administrative proceedings themselves

18 are void.” United Farm Workers of Amer. v. Ariz. Agric. Emp’t. Relations Bd., 669 F.2d

19 1249, 1253 (9th Cir. 1982); see also SEC v. G.C. George Sec., Inc., 637 F.2d 685, 688 n.4

20 (9th Cir. 1981). The Ninth Circuit’s principles regarding waiver of exhaustion

21 requirements have been specifically applied to find exhaustion futile, and therefore,

22 waived, in the context of a § 2241 habeas claim. See, U.S. v. Paige, 369 F. Supp. 2d 1257,

23 1259-60 (D. Mont. 2005).

24

113. Plaintiffs need not meet § 2241’s prudential exhaustion requirement because

25 attempting to do so under the circumstances would be futile and would cause them

26 irreparable injury. Courts across the state, including Orange County courthouses, have

27

28

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1 significantly reduced operations due to the COVID-19 outbreak162, which is inevitably

2 causing delays in adjudicating cases. It would be not only futile, but dangerous to force

3 Plaintiffs and Class Members to pursue the lengthy and time-consuming process of

4 exhausting state remedies when their risk of COVID-19 contraction is increasing by the

5 minute. Finally, exhaustion is futile for proposed class members, because requiring each

6 member to individually petition the Court would burden the limited judicial resources

7 during this emergency and cause further delay. Time is of the essence, the risk of

8 irreparable harm to Plaintiffs and Class Members is simply too high to require exhaustion

9 in this situation.

10

11

VI. CLAIMS FOR RELIEF

12

13

FIRST CLAIM FOR RELIEF

14

Unconstitutional Conditions of Confinement in Violation of the Fourteenth

15

Amendment to the U.S. Constitution

16

42 U.S.C. § 1983 / 28 U.S.C. § 2241

17

Pre-trial Class versus All Defendants

18

114. Plaintiffs incorporate by reference each of the preceding paragraphs and

19 allegations as if fully set forth herein.

20

21 162 See Sean Emery, Coronavirus and Southern California Court Closures: Traffic Ticket

22 Extensions, No Jury Duty, Orange County Register (Apr. 14, 2020, 5:48 PM),

https://www.ocregister.com/2020/04/13/coronavirus-and-southern-california-court23 closures-no-jury-duty-and-traffic-ticket-extensions/ (noting that “[l]ocal superior courts . .

24 . have ceased the bulk of their operations in the midst of the pandemic . . .”); Brandon Pho,

25

OC Court Officials Revise Operations and Hearings After Public Outrage, but What Happens Next is Unclear, Voice of OC (Mar. 20, 2020), https://voiceofoc.org/2020/03/oc-

26 court-officials-revise-operations-and-hearings-after-public-outrage-but-what-happens-

27

next-is-unclear/ (last visited Apr. 21, 2020) (highlighting the uncertainty about the extent of the Orange County Superior Court’s day-to-day operations during the coronavirus

28 pandemic).

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1

115. Under the Fourteenth Amendment, corrections officials are required to

2 provide for the reasonable health and safety of persons in pre-trial custody. Youngberg,

3 457 U.S. at 315–16, 324 (the state has an “unquestioned duty” to “provide adequate . . .

4 medical care” for detained persons).

5

116. As part of the right, the government must provide people held pre-trial with

6 reasonable safety and address serious medical needs that arise in jail, under the same

7 objective deliberate indifference standard that applies to failure-to-protect claims brought

8 by people held pre-trial. Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018),

9 cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794 (2019). Regardless

10 of the subjective intent of Defendants, objective deliberate indifference to the serious risk

11 that COVID-19 poses to members of the Pre-trial Class, and particularly members of the

12 Medically-Vulnerable Pre-trial Subclass, violates this right.

13

117. The Orange County Jail has taken insufficient steps to comply with public

14 health guidelines to manage the outbreak of COVID-19 that it is currently facing, and it

15 must take further protective steps, including the release of some individuals, to provide for

16 the safety of the Pre-trial Class. Defendants’ actions and inactions result in the confinement

17 of members of the Pre-trial Class in a jail where they do not have the capacity to test for,

18 treat, or manage COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and

19 adequate medical care.

20

118. Accordingly, Defendants, as supervisors, direct participants, and policy

21 makers for Orange County and the Orange County Jail have violated the rights of the Pre-

22 trial Plaintiff Class under the Fourteenth Amendment.

23

24

25

26

27

28

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1

SECOND CLAIM FOR RELIEF

2 Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.

3

Constitution

4

42 U.S.C. § 1983 / 28 U.S.C. § 2241

5

Pre-trial Class versus All Defendants

6

119. Plaintiffs incorporate by reference each of the preceding paragraphs and

7 allegations as if fully set forth herein.

8

120. Under the Fourteenth Amendment, persons in pre-trial custody have greater

9 due process protections than those convicted and therefore cannot be punished as part of

10 their detention. Bell, 441 U.S. at 535 n.16. Punishment is established if the jailer’s conduct

11 is either not rationally related to a legitimate, nonpunitive, government purpose or

12 excessive in relation to that purpose.

13

121. Even assuming that the Orange County Jail’s spacing and provision of

14 medical services inside the facility normally serves the legitimate, nonpunitive, purpose of

15 maintaining the health and safety of detained persons, the Orange County Jail has failed to

16 comply with public health guidelines to manage the outbreak of COVID-19. In fact, the

17 Jail has neither the capacity nor the ability to comply with public health guidelines to

18 manage the outbreak. Therefore, continuing to detain Pre-trial Class members without

19 making the Orange County Jail compliant with COVID-19-specific guidance from public

20 health experts is not rationally related to, and excessive in relation to, that purpose.

21

122. Accordingly, Defendants, as supervisors, direct participants, and policy

22 makers for Orange County and the Orange County Jail have violated the rights of the Pre-

23 trial Plaintiff Class under the Fourteenth Amendment.

24

25

26

27

28

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1

THIRD CLAIM FOR RELIEF

2 Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment

3

to the U.S. Constitution

4

42 U.S.C. § 1983 / 28 U.S.C. § 2241

5

Post-conviction Class versus All Defendants

6

123. Plaintiffs incorporate by reference each of the preceding paragraphs and

7 allegations as if fully set forth herein.

8

124. Under the Eighth Amendment, persons in carceral custody have a right to be

9 free from cruel and unusual punishment. As part of this right, the government must provide

10 incarcerated persons with reasonable safety and address serious medical needs that arise in

11 jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. Deliberate indifference

12 to the serious risk that COVID-19 poses to members of the Post-conviction class, and

13 particularly members of the Medically-Vulnerable Post-conviction Subclass, infringes on

14 the protection from cruel and unusual punishment. Defendants violate this right by

15 subjecting members of the Post-conviction Class to conditions of confinement that do not

16 ensure their safety and health.

17

125. The Orange County Jail has failed to comply with public health guidelines to

18 manage the outbreak of COVID-19. The Jail has neither the capacity nor the ability to

19 comply with public health guidelines to manage the outbreak and cannot provide for the

20 safety of the Post-conviction Class.

21

126. Defendants’ actions and inactions result in the confinement of members of

22 the Post-conviction Class in a jail where they do not have the capacity to test for, treat, or

23 manage COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate

24 medical care.

25

127. By operating the Orange County Jail without the capacity to test for, treat, or

26 manage a COVID-19 outbreak, Defendants, as supervisors, direct participants, and policy

27 makers for Orange County and the Orange County Jail have violated the rights of the Post-

28 conviction Plaintiff Class under the Eighth Amendment.

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1

FOURTH CLAIM FOR RELIEF

2

Discrimination on the Basis of Disability in Violation of Title II of the ADA

3

42 U.S.C. § 12131 et seq. / 28 U.S.C. § 2241

4

Pre-trial and Post-conviction Disability subclasses versus all Defendants

5

128. Plaintiffs incorporate by reference each of the preceding paragraphs and

6 allegations as if fully set forth herein.

7

129. Title II of the ADA requires that public entities refrain from discriminating

8 against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations

9 implementing Title II of the ADA require that public entities avoid unnecessary policies,

10 practices, criteria or methods of administration that have the effect of excluding or

11 discriminating against persons with disabilities in the entity’s programs, services, or

12 activities. 28 C.F.R. § 35.130(a), (b)(3), (b)(8). Further, a public entity must “make

13 reasonable modifications in policies, practices, or procedures when the modifications are

14 necessary to avoid discrimination on the basis of disability, unless the public entity can

15 demonstrate that making the modifications would fundamentally alter the nature of the

16 service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i).

17

130. Plaintiffs Daniel Kauwe, Michael Seif, Pedro Bonilla, Cynthia Campbell,

18 Monique Castillo, Mark Trace, Cecibel Caridad Ortiz and Don Wagner are individuals with

19 disabilities for purposes of the ADA. 42 U.S.C. § 12102. As people held in the Orange

20 County Jail, they are “qualified” for the programs, services, and activities being challenged

21 herein. 42 U.S.C. § 12131(2).

22

131. Defendants are violating Title II of the ADA by failing to make the reasonable

23 modifications necessary to ensure equal access to adjudication, jail services, and release

24 for people with disabilities who face high risk of complications or death in the event of

25 COVID-19 infection. Defendants are further violating the ADA by employing methods of

26 administration (including a policy of non-release even in the face of COVID-19) that tend

27 to discriminate against people with disabilities by placing them at heightened risk of severe

28 illness and death.

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1

FIFTH CLAIM FOR RELIEF

2

Discrimination on the Basis of Disability in Violation of Section 504 of the

3

Rehabilitation Act

4

29 U.S.C. § 794 et seq. / 28 U.S.C. § 2241

5

Pre-trial and Post-conviction Disability subclasses versus all Defendants

6

132. Plaintiffs incorporate by reference each of the preceding paragraphs and

7 allegations as if fully set forth herein.

8

133. Section 504 of the Rehabilitation Act states that “no otherwise qualified

9 individual with disability in the United States . . . shall, solely by reason of [] disability, be

10 excluded from the participation in, be denied the benefits of, or be subject to discrimination

11 under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

12 The regulations implementing Section 504 of the Rehabilitation Act require that entities

13 receiving federal financial assistance avoid unnecessary policies, practices criteria or

14 methods of administration that have the effect of discriminating against persons with

15 disabilities. 28 C.F.R. § 41.51(b)(3)(i).

16

134. Defendants receive “Federal financial assistance” within the meaning of 28

17 U.S.C. § 794(a).

18

135. Plaintiffs Daniel Kauwe, Michael Seif, Pedro Bonilla, Cynthia Campbell,

19 Monique Castillo, Mark Trace, Cecibel Caridad Ortiz and Don Wagner are individuals with

20 disabilities for the purposes of the Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. §

21 705(20)(B). As people held in the Orange County Jail, they are “qualified” for the

22 programs, services, and activities being challenged herein.

23

136. Defendants are violating section 504 of the Rehabilitation Act by failing to

24 make the reasonable modifications necessary to ensure equal access to adjudication, jail

25 services, and release for people with disabilities who face high risk of complications or

26 death in the event of COVID-19 infection. Defendants are further violating the

27 Rehabilitation Act by employing methods of administration (including a policy of non-

28

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1 release even in the face of COVID-19) that tend to discriminate against people with

2 disabilities by placing them at heightened risk of illness and death.

3

4

VII. REQUEST FOR RELIEF

5

137. Plaintiffs incorporate by reference each of the preceding paragraphs and

6 allegations as if fully set forth herein.

7

138. Plaintiffs and Class Members respectfully request that the Court order the

8 following:

9

1. Certification of this Complaint/Petition as a Class Action;

10

2. Grant a writ of habeas corpus for members of the Medically-Vulnerable and

11

Disability Subclasses requiring Defendants to identify all Medically-

12

Vulnerable Subclass Members and Disability Subclass Members in both the

13

Pre-trial and Post-Conviction Classes within six hours of the Court’s order

14

and release all such persons within twenty-four hours of submission of the list

15

absent proof of judicially-recorded findings by clear and convincing evidence

16

that the individual poses such a serious risk of flight or danger to others that

17

no other conditions can mitigate, and requiring Defendants to provide all

18

persons released with educational resources on COVID-19 including

19

instructions that they should self-isolate for the CDC-recommended period of

20

time (currently 14 days) following release;

21

3. A temporary restraining order, preliminary injunction, permanent injunction,

22

and/or writ of habeas corpus requiring Defendants to immediately adopt

23

mitigation efforts to protect all Class Members not immediately released,

24

including but not necessarily limited to:

25

a. Provide adequate spacing of six feet or more between incarcerated

26

people so that social distancing can be accomplished in accordance with

27

CDC guidelines

28

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1

b. Effectively communicate to all incarcerated people, including low-

2

literacy and non-English-speaking people, sufficient information about

3

COVID-19, measures taken to reduce the risk of transmission, and any

4

changes in policies or practices to reasonably ensure that individuals

5

are able to take precautions to prevent infection;

6

c. Ensure that each incarcerated person receives, free of charge, an

7

individual supply of hand soap and paper towels sufficient to allow

8

frequent hand washing and drying each day; an adequate supply of

9

clean implements for cleaning such as sponges and brushes and

10

disinfectant hand wipes or disinfectant products effective against the

11

virus that causes COVID-19 for daily cleanings;

12

d. Ensure that all incarcerated people have access to hand sanitizer

13

containing at least 60% alcohol;

14

e. Provide access to daily showers and daily access to clean laundry,

15

including clean personal towels and washrags after each shower;

16

f. Require that all Jail staff wear personal protective equipment, including

17

CDC-recommended surgical masks, when interacting with any person

18

or when touching surfaces in cells or common areas;

19

g. Require that all Jail staff wash their hands, apply hand sanitizer

20

containing at least 60% alcohol, or change their gloves both before and

21

after interacting with any person or touching surfaces in cells or

22

common areas;

23

h. Take the temperature of all class members, jail staff, and visitors daily

24

(with a functioning and properly operated and sanitized thermometer)

25

to identify potential COVID-19 infections;

26

i. Assess (through questioning) each incarcerated person daily to identify

27

potential COVID-19 infections;

28

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1

j. Conduct immediate testing for anyone (class members, jail staff and

2

visitors) displaying known symptoms of COVID-19;

3

k. Ensure that individuals identified as having COVID-19 or having been

4

exposed to COVID-19 receive adequate medical care and are properly

5

quarantined (without resorting to cohorting, if possible), in a non-

6

punitive setting, with continued access to showers, recreation, mental

7

health services, reading materials, phone and video visitation with

8

loved ones, communications with counsel, and personal property;

9

l. Respond to all emergency (as defined by the medical community)

10

requests for medical attention within an hour;

11

m. Provide sufficient disinfecting supplies, free of charge, so incarcerated

12

people can clean high-touch areas or items (including, but not limited

13

to, phones and headphones) between each use;

14

n. Waive all medical co-pays for those experiencing COVID-19-related

15

symptoms;

16

o. Waive all charges for medical grievances during the COVID-19

17

outbreak

18

4. Following immediate release of all Medically-Vulnerable and Disability

19

Subclass Members, a plan, to be submitted to the Court in 3 days and overseen

20

by a qualified public health expert pursuant to Fed. R. Evid. 706, which

21

outlines:

22

a. Any further mitigation efforts, in line with CDC guidelines, that will

23

substantially reduce the risks of COVID-19 infection for Class

24

Members not immediately released; and

25

b. A housing and/or public support plan for any released Class or Subclass

26

Members whose testing confirms they have been exposed to or infected

27

with COVID-19 and who do not readily have a place to self-isolate for

28

the CDC-recommended period of time (currently 14 days).

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AND COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 67 of 70 Page ID #:67

1

5. A preliminary injunction, permanent injunction, and/or writ of habeas corpus

2

requiring Defendants to:

3

a. Continue to release all current and future Medically-Vulnerable and

4

Disability subclass members absent proof of judicially-recorded

5

findings by clear and convincing evidence that the individual poses

6

such a serious risk of flight or danger to others that no other conditions

7

can mitigate;

8

b. Report weekly on the population of persons in the Orange County Jail

9

who are Medically-Vulnerable and have disabilities as defined in this

10

action;

11

c. Follow the terms of the public health expert plan submitted pursuant to

12

Fed. R. Evid. 706;

13

d. Conduct an evaluation of how many people the jail can house in a safe

14

manner consistent with public health guidance requiring all persons to

15

maintain six feet or more of space between them, including:

16

i. A description of the size of all jail cells, tanks, and dorm-style

17

housing, noting how many people can safely be housed in

18

each;

19

ii. The distance between beds in jail cells, tanks, and dorm-style

20

housing;

21

iii. The size and location of shared toilets and showers and the

22

number of people who use each at a time; and

23

iv. The size of each dayroom and the number of people who can

24

safely use each while maintaining six feet or more of space

25

between them.

26

e. Release additional Class Members, including those not considered

27

medically vulnerable, or disabled until the jail is able to consistently

28

maintain a population no larger than the safe capacity identified above.

PETITION FOR WRIT OF HABEAS CORPUS

64

AND COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 68 of 70 Page ID #:68

1

6. A temporary restraining order, preliminary injunction and permanent

2

injunction prohibiting OCSD from booking individuals for any misdemeanor

3

or felony offense other than the exceptions set forth in Emergency rule 4(c)

4

of the California Rules of Court for which bail greater than $0 may be set.

5

7. If immediate release is not granted on the basis of this Complaint alone, then

6

expedited review of the Complaint, including oral argument, via telephonic or

7

videoconference if necessary;

8

8. A declaration that the Orange County Jail’s policies violate the Fourteenth

9

Amendment rights to reasonable safety and to be free from punishment prior

10

to conviction with respect to the Pre-trial Class;

11

9. A declaration that the Orange County Jail’s policies violate the Eighth

12

Amendment right against cruel and unusual punishment with respect to the

13

Post-Conviction Class;

14

10. A declaration that the Orange County Jail’s policies violate the Americans

15

with Disabilities Act and Section 504 of the Rehabilitation Act with respect

16

to both Disability Subclasses;

17

11. An award of Plaintiffs’ attorney fees and costs under 42 U.S.C. sec. 1988, 42

18

U.S.C. sec 12205, 29 U.S.C. sec. 794a and other applicable law; and

19

12. Any further relief this Court deems appropriate.

20

21

Respectfully submitted,

22

23

24

25

26

27

28

PETITION FOR WRIT OF HABEAS CORPUS

65

AND COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 69 of 70 Page ID #:69

1 /s/Cassandra Stubbs

/s/ Peter Eliasberg

/s/ Mitchell

/s/ John Washington

2 AMERICAN CIVIL AMERICAN CIVIL Kamin

John Washington

3 LIBERTIES UNION

LIBERTIES FUND Mitchell Kamin

OF SOUTHERN

C.A. Bar No.

C.A. Bar No. 315991

4 FOUNDATION

CALIFORNIA

202788

Schonbrun,

5 Cassandra Stubbs Peter Eliasberg

C.A. Bar No.

C.A. Bar No.

Aaron Lewis C.A. Bar No.

Seplow, Harris, Hoffman & Zeldes

6 218849

189110

284244

LLP

7 Olivia Ensign*

1313 W. Eighth St. Brittany Benjamin 11543 W. Olympic

N.C. Bar No. 50689 Los Angeles, CA

C.A. Bar No.

Blvd.

8 Cristina Becker* 90017

323968

Los Angeles, CA

9 N.C. Bar No. 46793 201 W. Main St.,

COVINGTON & 90064 BURLING LLP (310) 399-7040

10 Suite 402, Durham,

1999 Avenue of jwashington@sshhl

11 NC 27701 cstubbs@aclu.org
12 ensign@aclu.or

the Stars Los Angeles, CA 90067-4643

aw.com

13 cbecker@aclu.org 14 Carl Takei

(424) 332-4800 s/ Paul Hoffman alewis@cov.com Paul Hoffman mkamin@cov.com C.A. Bar No.

15 C.A. Bar No. 256229
16 Somil Trivedi*

bbenjamin@cov.co 71244

m

UNIVERSITY OF

CALIFORNIA,

17 D.C. Bar No. 1617967
18 Clara Spera*

Stacey Grigsby* D.C. Bar No. 491197

IRVINE SCHOOL OF LAW CIVIL RIGHTS

19 N.Y. Bar No. 5590229
20 AMERICAN CIVIL

Amia Trigg** C.A. Bar No. 282890

LITIGATION CLINIC 401 E. Peltason

21 LIBERTIES UNION
22 FOUNDATION

COVINGTON & BURLING LLP One CityCenter

Dr., Suite 1000, Irvine, CA 92687

23 125 Broad Street, 18th Floor
24 New York, NY

850 Tenth Street NW Washington, DC

(949) 824-0066

25 10004 ctakei@aclu.org
26 strivedi@aclu.org

20001 (202) 662-6000 sgrigsby@cov.com

27 cspera@aclu.org

atrigg@cov.com

28

PETITION FOR WRIT OF HABEAS CORPUS

66

AND COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

Case 8:20-cv-00835-JGB-SHK Document 1 Filed 04/30/20 Page 70 of 70 Page ID #:70

1 Zoe Brennan2 Krohn**
C.A. Bar No. 3 324912 4 AMERICAN CIVIL
LIBERTIES 5 UNION 6 FOUNDATION
Disability Rights 7 Program 8 39 Drumm Street
San Francisco, CA 9 94111 10 (415)-343-0769
zbrennan11 krohn@aclu.org
12

13

14

15

16

17

18

19 ATTORNEYS FOR PLAINTIFFS

20

*pro hac vice application forthcoming **C.D. California admission application forthcoming

21

22

23

24

25

26

27

28

PETITION FOR WRIT OF HABEAS CORPUS

67

AND COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF

 
 Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 1 of 35 Page ID #:405

1 MITCHELL KAMIN (SBN 202788) mkamin@cov.com
2 AARON LEWIS (SBN 284244)
3 alewis@cov.com BRITTANY BENJAMIN (SBN 323968)
4 bbenjamin@cov.com
5 COVINGTON & BURLING LLP 1999 Avenue of the Stars
6 Los Angeles, CA 90067-4643
7 Telephone: (424) 332-4800 Facsimile: (424) 332-4749
8

9 CASSANDRA STUBBS (SBN 218849)

10

cstubbs@aclu.org AMERICAN CIVIL LIBERTIES UNION

11 FOUNDATION

12

201 W. Main St., Suite 402 Durham, NC 27701

13 Telephone: (919) 682-5659

14 Facsimile: (919) 682-5961

15 Attorneys for Plaintiffs

16 [Additional Counsel continued on next page]

17

UNITED STATES DISTRICT COURT

18

FOR THE CENTRAL DISTRICT OF CALIFORNIA

19

SOUTHERN DIVISION

20

21 MELISSA AHLMAN, DANIEL KAUWE,

22

MICHAEL SEIF, JAVIER ESPARZA, PEDRO BONILLA, CYNTHIA

23 CAMPBELL, MONIQUE CASTILLO,

24

MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of

25 themselves and all others similarly situated,

26

Plaintiffs,

27

v.

28

Civil Case No.: 8:20-cv-835-JGB-SHK
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF FILED CONCURRENTLY WITH DECLARATIONS; EXHIBITS;
Date: May 18, 2020 Time: 9:00 AM

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 2 of 35 Page ID #:406

1 DON BARNES, in his official capacity as Sheriff of Orange County, California; and
2 ORANGE COUNTY, CALIFORNIA
3 Defendants.
4 5 [Additional Counsel continued from first
page] 6 7 STACEY GRIGSBY*
sgrigsby@cov.com 8 AMIA TRIGG** (SBN 282890) 9 atrigg@cov.com
COVINGTON & BURLING LLP 10 One CityCenter 11 850 Tenth Street NW
Washington, DC 20001 12 Telephone: (202) 662-6000 13 Facsimile: (202) 778-5906
14 OLIVIA ENSIGN 15 oensign@aclu.org
CRISTINA BECKER 16 cbecker@aclu.org 17 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 18 201 W. Main St., Suite 402 19 Durham, NC 27701
Telephone: (919) 682-5659 20 Facsimile: (919) 682-5961
21
22
23
24
25 CARL TAKEI (SBN 256229)
26 ctakei@aclu.org 27 SOMIL TRIVEDI
strivedi@aclu.org 28

Hon. Jesus G. Bernal
Class Action
IMMEDIATE RELIEF SOUGHT
JOHN WASHINGTON (SBN 315991) jwashington@sshhlaw.com SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 Telephone: (310) 399-7040 Facsimile: (310) 399-7040
PETER ELIASBERG (SBN 189110) peliasberg@aclu.org AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St Los Angeles, CA 90017 Telephone: (213) 977-9500
PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000 Irvine, CA 92687 Telephone: (949) 824-0066
ZOE BRENNAN-KROHN (SBN 324912) zbrennan-krohn@aclu.org

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 3 of 35 Page ID #:407

1 CLARA SPERA cspera@aclu.org
2 AMERICAN CIVIL LIBERTIES UNION 3 FOUNDATION
125 Broad Street, 18th Floor 4 New York, NY 10004 5 Telephone: (212) 607-3300
Facsimile: (212) 607-3318 6 7 ATTORNEYS FOR PLAINTIFFS
8 *pro hac vice application forthcoming 9 **C.D. California admission application
forthcoming 10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 Facsimile: (415) 255-1478

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 4 of 35 Page ID #:408

1

TABLE OF CONTENTS

2 INTRODUCTION .................................................................................................... 1

3 I. 4
II. 5
6
7
8
9

THE FACTS THAT NECESSITATE THIS PETITION............................... 2
ARGUMENT................................................................................................ 10
A. Plaintiffs Are Likely To Prevail On The Merits Of Their Constitutional And ADA Claims. ...................................................... 11
1. Defendants Have Violated Plaintiffs’ Constitutional Rights To Protection From The Risks Of This Highly Contagious Disease. ................................................................. 11

10

2. Defendants Are Unconstitutionally Punishing Members

11

Of The Pretrial Class................................................................ 16

12

3. Defendants Have Violated The ADA and Rehabilitation

Act By Discriminating against the Disability Subclasses. ...... 17

13

14

B. Plaintiffs Are Likely To Suffer Irreparable Harm, Including Death, If This Court Does Not Issue The Requested Relief. ............. 19

15

C. The Potential Harms To Plaintiffs Are Much Greater Than Any

16

Speculative Harm Defendants May Assert, and the Public's

17

Interest Favors the Requested Injunction. .......................................... 23

18

D. Plaintiffs’ Requested Relief ............................................................... 24

19

1. Release of Medically-Vulnerable and Disability Subclass

20

Members................................................................................... 24

21

2. A Mandatory Plan To Address The Jail’s COVID-19

22

Crisis ........................................................................................ 25

23

3. Implementing Constitutionally Sufficient Conditions at

the Orange County Jail............................................................. 25 24

25 CONCLUSION ....................................................................................................... 25

26

27

28

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 5 of 35 Page ID #:409

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4

Andrews v. Cervantes,

5

493 F.3d 1047 (9th Cir. 2007) ............................................................................14

6 Arc of California v. Douglas,

7

757 F.3d 975 (9th Cir. 2014) ..............................................................................20

8 Basank v. Decker,

9

20-cv-2518, (S.D.N.Y. Mar. 26, 2020).................................................................3

10 Bell v. Wolfish,

11

441 U.S. 520 (1979)......................................................................................12, 16

12 Bent v. Barr,

No. 19-cv-06123-DMR, 2020 WL 1812850 (N.D. Cal. April 9,

13

2020) ...................................................................................................................20

14 Cameron v. Bouchard,

15

No. CV 20-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020) ..................15

16 Castillo v. Barr,

17

20-cv-605, (C.D. Cal. Mar. 27, 2020) ..................................................................3

18 Coronel v. Decker,

19

--- F.Supp.3d ----, 2020 WL 1487274 (S.D.N.Y. March 27, 2020) ....................3

20 Delgado v. Barnes, 465 F. App’x 712 (9th Cir. 2012) .......................................................................14
21

22 Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) ......................................................................16, 17

23

Duvall v. Cty. of Kitsap,

24

260 F.3d 1124 (9th Cir. 2001) ............................................................................17

25 Elrod v. Burns,

26

427 U.S. 347 (1976)............................................................................................20

27

28

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 6 of 35 Page ID #:410

1 Estelle v. Gamble, 429 U.S. 97 (1976)........................................................................................11, 14

2

Farmer v. Brennan,

3

511 U.S. 825 (1994)............................................................................................14

4 Fraihat v. U.S. Immigration & Customs Enf't,

5

No. EDCV 19-1546-JGB, 2020 WL 1932570 (C.D. Cal. Apr. 20,

6

2020) ........................................................................................................3, 20, 24

7 Fraihat v. Wolf, 20-cv-590 (C.D. Cal. Mar. 30, 2020) .......................................................3, 18, 19
8

9 Gordon v. Cty. of Orange, 888 F.3d 1118 (9th Cir. 2018) ............................................................................15

10

Helling v. McKinney,

11

509 U.S. 25 (1993)........................................................................................14, 15

12 Henrietta D. v. Bloomberg,

13

331 F.3d 261 (2d Cir. 2003) ...............................................................................19

14 Hernandez v. Cty. Of Monterey,

15

110 F. Supp. 3d 929 (N.D. Cal. 2015)................................................................15

16 Kingsley v. Hendrickson,

17

135 S.Ct. 2466 (2015)...................................................................................15, 16

18 Lemire v. Cal. Dep’t of Corr. & Rehab.,

19

726 F.3d 1062 (9th Cir. 2013) ............................................................................14

20 Lopez v. McGrath,

No. 04-cv-4782 MHP, 2007 WL 1577893 (N.D. Cal. May 31,

21

2007) ...................................................................................................................14

22 Northsworthy v. Beard,

23

87 F.Supp.3d 1164 (N.D. Cal. 2015)..................................................................20

24 Parsons v. Ryan,

25

754 F.3d 657 (9th Cir. 2014) ..............................................................................15

26 Pierce v. District of Columbia,

27

128 F. Supp. 3d 250 (D.D.C. 2015)....................................................................18

28

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 7 of 35 Page ID #:411

1 In the Matter of the Request to Commute or Suspend County Jail Sentences,

2

(N.J. No. 084230 March 22, 2020).......................................................................3

3 Roman v. Wolf,

4

No. CV 20-768, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020) ...........................3

5 Rose v. Baker,

6

No. 17-15009 (9th Cir. Apr. 9, 2020) ...........................................................12, 13

7 Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) .....................3
8

9 Thakker v. Doll, No. 20-cv-480 (JEJ), 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ..................3

10

Trevizo v. Webster,

11

No. 17-cv-5868-MWF-KS, 2018 WL 5917858 .................................................14

12 United States v. Muniz,

13

No. 4:09-CR-0199, 2020 WL 1540325 (S.D. Tex. Mar. 30, 2020) .....................4

14 Vazquez Barrera v. Wolf,

15

No. 4:20-CV-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020) ...................21

16 Wilson v. Williams,

17

No. 20-cv-00794 (N.D. Ohio April 22, 2020) ......................................................3

18 Winter v. Natural Res. Def. Council,

19

555 U.S. 7 (2008)................................................................................................11

20 Statutes

21 28 C.F.R. §§ 35.102 .................................................................................................18

22 28 C.F.R. § 35.104 ...................................................................................................18
23 28 C.F.R. § 35.108 ...................................................................................................18 24
28 C.F.R. § 35.130 ...................................................................................................18 25

26 27 28 C.F.R. § Pt. 35, App. B .......................................................................................18

28

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 8 of 35 Page ID #:412
1 2 42 U.S.C. § 12132..............................................................................................17, 18 3 4 RULES 5
Fed. R. Evid. 706 .....................................................................................................25 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 9 of 35 Page ID #:413

1

INTRODUCTION

2

The COVID-19 pandemic has upended the nation, sickening over a million

3 people, killing tens of thousands, and sending most Americans into isolation to avoid

4 infection. People confined in the close quarters of jails, however, face a particularly

5 high risk of infection unless corrections officials take reasonable and available steps

6 to protect them. Orange County and its Sheriff have foregone critical measures

7 recommended by the CDC for correctional facilities, putting thousands of vulnerable

8 people in the Orange County Jail (“Jail”) at imminent risk of infection and death.

9 All of the named Plaintiffs fear that they will fall gravely ill and may die. In Mr.

10 Wagner’s words, “I don’t want to get a life sentence by catching the virus and

11 dying.”1

12

Defendants have put everyone in the Jail at risk—particularly the Medically-

13 Vulnerable and Disability Subclasses—by failing to consistently or fully implement

14 necessary and feasible public health protections in the Jail. As of this filing, 259

15 people in the Jail have confirmed positive for COVID-19, out of 738 tests, and 159

16 results are still pending.2 The number of positive tests has doubled in a week’s time.3

17 With nearly 3,000 detained people in the Jail, the true number of people infected is

18 likely much higher and will keep growing.4 The growing infection creates an

19 enormous risk, not just to those within the jail, but also to the surrounding Orange

20 County community, by contributing to the rapid spread of COVID-19 and creating

21 a debilitating burden on its healthcare delivery system.5

22
23 1 Exhibit B, Wagner Decl. ¶ 21. 2 Orange County Sheriff’s Department, COVID-19 in OC Jails (May 8, 2020),
24 https://www.ocsd.org/documents/sheriff/COVIDStats5.8.20.pdf.

25

3 Orange County Sheriff’s Department, COVID-19 in OC Jails (Apr. 29, 2020), https://www.ocsd.org/documents/sheriff/COVIDStats4.29.20.pdf.

26 4 Exhibit C, Parker Decl. ¶ 23.

27 5 Id. ¶ 24.

28 1

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 10 of 35 Page ID #:414

1

The confinement of people under these life-threatening conditions violates the

2 Eighth and Fourteenth Amendments to the U.S. Constitution, as well as the

3 Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. Only urgent

4 action can remedy these serious violations that will lead to mass infection,

5 complications, and even death of people in the Jail. Plaintiffs thus respectfully ask

6 the Court to consider this Petition on an emergency basis, grant immediate releases

7 for members of the Medically-Vulnerable and Disability Subclasses, and order the

8 development of a plan to prevent further spread of COVID-19 within the Jail.

9

I. THE FACTS THAT NECESSITATE THIS PETITION

10

The Jail is the midst of a serious outbreak of COVID-19 with the number of

11 COVID cases increasing exponentially. Without immediate intervention, the

12 outbreak will continue to escalate, threatening the lives of detained persons within 13 the Jail, corrections and medical staff at the Jail, and the surrounding community.6

14

Once introduced into a jail, COVID-19 spreads quickly among those inside.

15 Jails are hotbeds for spread of COVID-19 because of: many people living in a

16 closed space; shared ventilation; common food preparation space; communal

17 living/bathing/toileting/eating; limited medical facilities; and limited ability to

18 leave the facility when symptomatic or after potential exposure to the virus.7

19 Moreover, jails are not closed environments; members of the community,

20 including both staff and incarcerated people, regularly move in and out of the

21 facility bringing illnesses with them into the jail or, after infection inside, out to

22

23

24 6 Exhibit D, Goldenson Decl. ¶¶ 50-55; Ex. C, Parker Decl. ¶¶ 25, 31.

25

7 Ex. D, Goldenson Decl. ¶¶ 17-19; see Fraihat v. U.S. Immigration & Customs Enf't, No. EDCV 19-1546-JGB (SHKx), 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020));

26

Ernesto Torres, et al. v. United States Dep’t. of Homeland Sec., et al., EDCV 5:18cv-2604, Dkt. No. 144 (C.D. Cal. April 11, 2020). .

27

28 2

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 11 of 35 Page ID #:415
1 the community.8 Numerous public health experts recommend that jails downsize
2 to reduce the risk of infection.9 And courts around the country have responded to
3 the serious risk to people confined in jails with inadequate protections by ordering
4 their release and by requiring jails to implement measures to reduce the spread of
5 COVID-19 within the jails.10
6
7 8 Ex. D, Goldenson Decl. at ¶¶ 33-34. 8 9 See Ex. C, Parker Decl.; Ex. D, Goldenson Decl. 9 10 See, e.g., Wilson v. Williams, No. 20-cv-00794, 2020 WL 1940882, at *10-11 10 (N.D. Ohio April 22, 2020) (ordering transfer of class of medically vulnerable
people from large prison to their homes, community supervision or other facilities 11 capable of social distancing because of the prison’s failure to provide social 12 distancing and protections against COVID), denying motion to stay preliminary
injunction, Case No. 20-3447 (6th Cir. May 4, 2020) (finding that plaintiff prisoners 13 properly invoked Section 2241); Roman v. Wolf, No. CV 20-768, 2020 WL 1952656, 14 at *12 (C.D. Cal. Apr. 23, 2020) (granting class-wide preliminary injunction and
ordering Adelanto detention facility to immediately stop accepting new detainees 15 and to reduce detainee population to allow for social distancing, giving priority for 16 release to persons over the age of 55 and who are medically vulnerable), stay granted
in part pending expedited appeal, Roman v. Wolf, No. 20-55436, 2020 WL 2188048 17 (9th Cir. May 5, 2020); In the Matter of the Request to Commute or Suspend County 18 Jail Sentences, Consent Order, at *2 (N.J. No. 084230 March 22, 2020) (consent
order setting out the presumptive release of all people currently serving a county jail 19 sentence); Thakker v. Doll, No. 20-cv-480 (JEJ), Dkt. No. 47, 2020 WL 1671563, at 20 *21 (M.D. Pa. Mar. 31, 2020) (ordering release of detained petitioners in light of the
detention facility’s inability to provide social distancing and proper hygiene, “the 21 only effective means by which we can stop the spread of COVID-19”); Savino v. 22 Souza, No. 20-10617-WGY, 2020 WL 1703844, at *1 (D. Mass. Apr. 8, 2020)
(ordering availability of bail for individuals because petitioners are “held in tight 23 quarters and unable to keep safe distance from others who may – and with time, 24 inevitably will – carry the highly contagious virus)”; Fraihat v. Wolf, 20-cv-590,
(C.D. Cal. Mar. 30, 2020); Castillo v. Barr, 20-cv-605, Dkt. No. 32, at *9 (C.D. Cal. 25 Mar. 27, 2020); Coronel v. Decker, No. 20-cv-2472 2020 WL 1487274, at *3 26 (S.D.N.Y. March 27, 2020); Basank v. Decker, 20-cv-2518, Dkt. No. 11, at *4
(S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite 27
28 3

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 12 of 35 Page ID #:416

1

Although the Jail has reduced its population since the first documented case,

2 this reduction is not enough to protect individuals held at the Jail from the growing

3 outbreak of COVID-19. Defendants’ own Correctional Health Services staff

4 recommended that the population be reduced by 50% in all congregate living areas

5 in order to promote social distancing, a goal Defendants have been unable to

6 achieve.

7

Members of the Medically-Vulnerable and Disability Subclasses face

8 imminent risk of fatal infection at the Orange County Jail.11 COVID-19 is

9 particularly dangerous to people who are older or have certain health conditions

10 and disabilities, including diabetes, lung disease, heart disease, and compromised 11 immune systems.12 Incarcerated people disproportionately experience these

12

13 possibly fatal, infection if they remain in immigration detention constitutes

14

irreparable harm warranting a TRO.”). 11 Ex. D, Goldenson Decl. ¶ 48; Ex. C, Parker Decl. ¶ 19. The California Judicial

15 Council issued an emergency order on April 6th that took several measures to reduce

16

jail populations, including adopting a statewide Emergency Bail Schedule that reduced bail to $0 for certain offenses. See Judicial Council of Cal., Judicial Branch

17 Administration: Emergency Rules in Response to the COVID-19 Pandemic (April

18

6,

2020),

available

https://jcc.legistar.com/View.ashx?M=F&ID=8233133&GUID=4CE2DDDF-

at

19 426E-446C-8879-39B03DE418B3. Plaintiffs Ahlman, Kauwe, and Seif are not

20

eligible for zero bail under the Emergency Bail Schedule, however, because their pending charges fall under exceptions set out in the rule. See id. at Emergency rule

21 4(c)(1), (11), (13); Exhibit E, Plaintiff Ahlman Record (charged with a felony

22 violation of 23152(A), exempted by 4(c)(11)); Exhibit F, Plaintiff Kauwe Records (charged with PC 451(B), exempted by 4(c)(1)); Exhibit G, Plaintiff Seif Records

23 (charged with a felony violation of PC 29800(A)(1), exempted by 4(c)(13)).

24 Additionally, it is imperative that Defendants take further action to reduce the Jail population given that Plaintiffs' court dates have been postponed for unspecified

25 periods of time while the courts are operating on a limited basis during the ongoing

26

pandemic. 12 Ex. D, Goldenson Decl. ¶ 27; Ex. C, Parker Decl. ¶ 19.

27

28 4

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 13 of 35 Page ID #:417

1 conditions, and so are “particularly vulnerable to severe illness from COVID-19.”

2 United States v. Muniz, No. 4:09-CR-0199, 2020 WL 1540325, at *2 (S.D. Tex.

3 Mar. 30, 2020). Defendants recognize that persons who are medically vulnerable

4 are at heightened risk, and adopted a policy of granting releases to some sentenced

5 persons with medical vulnerabilities. But Defendants have arbitrarily limited

6 those releases to only those individuals who are within 60 days of the end date of

7 their jail sentences, and then applied vague public safety criteria to whether to

8 release even that category of individuals. Defendants refuse to even consider

9 release of Medically Vulnerable individuals held on violations of probation or

10 parole (including technical violations). According to Defendants' list of all

11 persons in the jail who are medically vulnerable to a COVID infection, there are

12 488 medically vulnerable people currently held in the Jail.

13

Defendants must take further measures to stop the spread of the disease—

14 not only to protect people in the Jail from harm, but also to prevent a major

15 outbreak that would overwhelm community medical resources.13 The CDC has

16 announced several guidelines for prison and jails to limit the spread of COVID-

17 19.14 Quarantining is critical, for 14 days after intake and for symptomatic

18 individuals and their close contacts. Additionally, social distancing (requiring all

19 people to stay a minimum of six feet away from one another), frequent hand

20 washing with soap, and frequently cleaning and disinfecting shared surfaces are

21 essential to reducing the spread of the virus.15 Testing is another important

22

23

24 13 Ex. C, Parker Decl. ¶¶ 28-30 14 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

25 Correctional and Detention Facilities, Centers for Disease Control and Prevention

(March

23,

2020),

https://www.cdc.gov/coronavirus/2019-

26 ncov/downloads/guidance-correctional-detention.pdf.

27 15 Ex. D, Goldenson Decl., ¶¶ 2, 45.

28 5

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 14 of 35 Page ID #:418

1 component, enabling jail officials to know who is infected so they can be

2 quarantined from the general population.

3

Defendants have failed to appropriately implement these safeguards.

4 Defendants nonetheless assert that they are taking all necessary steps to protect

5 people in the jail from COVID-19, and have made a number of factual

6 representations to Plaintiffs about these alleged steps—some of which are 7 extremely recent, only after Plaintiffs filed the complaint.16 However, the actual

8 practices in the jail continue to be dangerous:

9

• Failure to Quarantine: Defendants have not uniformly quarantined new

10

arrivals at the Jail17; and even when they do quarantine people, they place

11

many in unreasonably risky conditions. The Jail quarantines the close contacts

12

of confirmed COVID-19 cases in cohorts—a practice that is discouraged by

13

the CDC because it places uninfected individuals at risk.18 The Jail also

14

defeats the purpose of quarantines by mixing cohorts with each other.19 In the

15

case of at least one of these quarantines, the Jail’s ineffective quarantine

16

practices may have contributed to a major cluster of infections.20

17

18

19

16 For example, on May 7, Defendants amended their list of screening questions for COVID-19 testing. Late last week, they also began to post signs stating that

20 detainees could request more hand soap. Exhibit H, Ramirez Decl. ¶ 13; Exhibit I, Trace May 9, 2020 Decl. ¶ 2; Exhibit J, Wagner May 8, 2020 Decl. (May 8) ¶ 6.

21 17 Exhibit K, Seif Decl. ¶ 10 (stating that new incarcerated individuals are not tested

22

before being placed in his tier); Ex. B, Wagner Decl. ¶ 14 (describing a new inmate placed in his sector whose father was in the hospital with COVID-19).

23 18 Ex. C, Parker Decl. ¶ 16; Ex. D, Goldenson Decl. ¶ 46.

24 19 See Exhibit L, Miranda Decl. ¶¶ 22, 25; Exhibit. M, Esparza Decl. ¶ 7; Exhibit N, Godinez Decl. ¶ 11 (half of quarantined dorm moved to another module and then
25 mixed with new people).

26

20 Ex. L, Miranda Decl. ¶¶ 8, 25; Ex. N, Godinez Decl. ¶¶ 8-9; Ex. D, Goldenson Decl. ¶ 45; Exhibit O, Farias Decl. ¶¶ 6-10; Exhibit P, Lentz Decl. ¶¶ 5-11.

27

28 6

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 15 of 35 Page ID #:419

1

• Lack of Social Distancing: In non-quarantined housing units at the Jail,

2

Defendants have not implemented procedures to allow Plaintiffs and putative

3

class members to socially distance from other people. Many people are in

4

cells with as many as eight people to a cell.21 In some barracks, Defendants

5

have increased the density by adding several new individuals in recent days.22

6

Plaintiffs and putative class members have constant, forced contact with many

7

others who may have been exposed to COVID-19.23 People are forced to eat

8

together, shower together, and to share common laundry and medicine

9

delivery. Defendants frequently move people around the jail, increasing their

10

potential exposures.24

11 21Exhibit Q, Ahlman Decl. ¶¶ 7-8, 11-14 (describing her shared medical unit housing

12

with 12 beds only two feet apart); Ex. P, Lentz Decl. ¶ 12; Ex. H, Ramirez Decl. ¶ 19 (impossible to socially distance in two-person cells or accompanying dayroom).

13 22 Ex. H, Ramirez Decl. ¶¶ 18 (in the past two days, barracks experienced rapid

population increases that make it impossible to socially distance). 14 23 Ex. L, Miranda Decl. ¶ 7; Ex. M, Godinez Decl. ¶ 6.; Exhibit R, Bonilla Decl. ¶¶

15 6-7 (held in two-person cell, approximately 8x12 feet and dayroom with 7 others

where they use the phones one foot apart from each other); Exhibit S, Ortiz Decl. ¶¶

16 5-7; (in medical module with beds approximately two to three feet apart and the

dayroom with chairs a foot apart from each other); Exhibit T, Hernandez Decl.¶¶ 617 10, 30; Ex. H, Ramirez Decl. ¶¶ 21 (symptomatic individual transferred from

18

quarantine to crowded barracks without being tested), 24 (symptomatic individual who asserts he has COVID-19 was transferred into new unit, assigned an

19 asymptomatic cellmate, and is mingling with others in common area)

24 See Ex. L, Miranda Decl. ¶¶ 4, 6, 9-12 (moved to four different units since entering

20 custody on January 10, 2020, being exposed to individuals with COVID-19

symptoms, and not being tested until four months later); Ex. Q, Ahlman Decl. ¶ 5 21 (being placed in overcrowded a holding tank that was only supposed to hold 10

22

people); Ex. N, Godinez Decl. ¶¶ 7, 10-13 (transferred within jail units, including being transferred from a module with exposure to individuals who had fevers and

23

COVID-19 symptoms to a new module without being tested for nearly a month despite having a persistent cough); Ex. S, Ortiz Decl. ¶¶ 18-19 (trip to the emergency

24 room for six hours returning without any quarantine or screening and the failure to quarantine new inmates in her medical module); Ex. K, Seif Decl. ¶ 9 (tier not tested

25 despite exposure to deputy who tested positive for COVID-19); Exhibit U, Herrera

Decl. ¶¶ 6,10 (unit not tested despite being exposed to deputy who tested positive

26 for COVID-19); Ex. B, Wagner Decl. ¶ 14 (describing an inmate new person placed

in his sector whose father was in the hospital with COVID-19); Exhibit V, Trace 27

28 7

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 16 of 35 Page ID #:420

1

• Inadequate Hygiene: The Jail fails to provide sufficient hygiene and

2

cleaning supplies at no cost to the detainees, providing 1-2 single use bars of

3

soap once a week that barely last one day. This is not enough soap to wash

4

their hands regularly and clean themselves. Although Defendants represent

5

they have posted signs throughout the jail stating that detainees could request

6

more hand soap (and Plaintiffs confirmed that these signs were newly posted

7

in multiple units at the end of last week), this has not translated to more soap

8

being provided in practice. When Plaintiffs requested the soap, deputies

9

refused to provide it.25 Defendants also provide flimsy, improvised masks that

10

they must reuse for days and weeks without washing.26 Defendants task

11

detainees with cleaning the cells vacated by other individuals who have

12

confirmed cases of COVID-19. Detainees are forced to carry out this high-

13

risk cleaning task without protective equipment like gloves or gowns.27

14

15

Decl. ¶ 15 (describing transfers of inmates people in and out of unit without

16 quarantine period); Ex. Q, Ahlman Decl. ¶¶ 21-22; Ex. N, Godinez Decl. ¶¶ 19, 21;

Exhibit W, Cardone Decl. ¶ 14. 17
25 Ex. H, Ramirez Decl. ¶ 13; see also Ex. I Trace Decl. (May 9, 2020) ¶ 2 (despite

18 new memo on wall about cleaning or hygiene, Mr. Trace asked for soap and was

denied it, and he had only received one bar of soap for 9 days).

19 26 See Ex. Q, Ahlman Decl. ¶ 18; Ex. R Bonilla Decl. ¶ 12; Ex. X, Baguiao Decl. ¶

20

13;Ex. W, Cardone Decl. ¶¶ 11-12; Exhibit Y, Castillo Decl. ¶ 17; Ex. T, Hernandez Decl. ¶ 24; Ex. U, Herrera Decl. ¶ 11; Exhibit Z, Kauwe Decl. ¶ 10; Ex. L, Miranda

21 Decl. ¶ 16; Ex. S, Ortiz Decl. ¶ 14; Exhibit AA, Saem Decl. ¶ 15; Ex. V, Trace Decl.

¶ 17; Ex. B, Wagner Decl. ¶ 18; Ex. O, Farias Decl. ¶ 12. Defendants have informed

22 Plaintiffs that they offer replacement laundered mask coverings of some kind every

other day but that is inconsistent with recent reports from individuals in the Jail. See

23 Ex. H, Ramirez Decl. ¶¶ 10-11 & 14-15 (cloth masks not replaced for weeks), 17

(cloth mask made from blood- and feces-stained sheets). 24
27 Ex. L, Miranda Decl. ¶ 10 (“Three days after the young man was removed the

25 guards instructed me and another inmate to clean out his belongings from his bunk.

26 We were not given gloves or masks.”); Ex. N, Godinez Decl. ¶ 12; Ex. P, Lentz Decl. ¶ 13 .
27

28 8

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 17 of 35 Page ID #:421

1

• Failure to Disinfect: The Jail does not properly disinfect high touch surfaces

2

to prevent the spread of the virus. Incarcerated people themselves are

3

responsible for cleaning the pods, including the toilets and showers, but the

4

Jail does not provide sufficient cleaning supplies. 28 Multiple declarants have

5

testified that incarcerated workers are provided watered-down cleaning

6

supplies or “dirty mop water,” instead of disinfectant to clean the showers and

7

common rooms.29 Defendants have not contested this except as to quarantine

8

and medical isolation units.

9

• Inadequate Testing and Isolation Practices: Despite California’s directive

10

prioritizing testing in jails, the Jail has failed to test or isolate detainees who

11

have COVID-19 symptoms, and until very recently, only a limited number

12

of detained individuals have been tested in the Jail.30 These testing practices

13

are plainly inadequate as they expose presumptively healthy detainees to

14

others with illness.31 Even when symptomatic individuals are tested, they

15

remain in the current housing units and are only moved to isolation after a

16

positive test result, contrary to public health guidance.32

17 28 See Ex. Q, Ahlman Decl. ¶¶ 19-20; Ex. R, Bonilla Decl. ¶ 16; Ex. X, Baguiao
18 Decl. ¶ 14-15; Exhibit BB, Campbell Decl. ¶ 20; Ex. Y, Castillo Decl. ¶ 19; Ex. M, Esparza Decl. ¶ 12; Ex. N, Godinez Decl. ¶ 17; Ex. T, Hernandez Decl. ¶¶ 11-12;
19 Ex. L, Miranda Decl. ¶¶ 17, 24-25; Ex. V, Trace Decl. ¶ 18; Ex. B, Wagner Decl. ¶
15; Ex. O, Farias Decl. ¶ 13; Ex. H, Ramirez Decl. ¶ 14 (three housing sectors must 20 use the same spray bottle of cleaning solution, which deputies keep behind a locked
21 door and do not consistently permit detainees to use). 29 Ex. K, Seif Decl. ¶ 13; see also, e.g., Ex. O, Farias Decl. ¶ 13; Ex. Y, Castillo
22 Decl. ¶ 19; Ex. I, Trace May 9, 2020 Decl. ¶ 3.

23

30 See Ex. Q, Ahlman Decl. ¶ 17; Ex. V, Trace Decl. ¶ 9 (request for testing denied); Ex. T, Hernandez Decl. ¶¶ 13, 16; Ex. AA, Saem Decl. ¶ 10; Ex. B, Wagner Decl.

24 ¶ 9; Ex. P, Lentz Decl. ¶ 14.

25

31 Ex. C, Parker Decl. ¶ 17; Ex. H, Ramirez Decl. ¶ 20 (cellmates of symptomatic individuals not quarantined).

26 32 Ex. H, Ramirez Decl. ¶¶ 22 (symptomatic individual was tested but not quarantined pending results), 23 (in unit containing multiple symptomatic
27

28 9

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 18 of 35 Page ID #:422

1

Named Plaintiffs Pedro Bonilla, Mark Trace, Don Wagner, Cynthia

2 Campbell, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, and Michael

3 Seif are all people with disabilities protected under federal law, and those disabilities

4 place them at high risk of critical illness or death if exposed to COVID-19 because 5 of their medical vulnerability.33 For these medically vulnerable, disabled Plaintiffs,

6 remaining in the Jail under these conditions increases the chance that they will 7 develop COVID-19 and become either extremely ill or die as a result.34 “Given the

8 high likelihood of contagion and spread in the jail, the safety of these [medically

9 vulnerable] individuals is a pressing emergency that needs to be addressed on an 10 urgent basis.”35

11

II. ARGUMENT

12

Given the dangerous conditions in the Jail, injunctive relief is warranted and

13 necessary to protect Plaintiffs and the classes they represent from being

14

15

individuals, people were not transferred to medical isolation until receiving positive test results).

16 33 Mark Trace is a 53-year-old man who has multiple, significant health conditions

17 including sclerosis of the liver, Hepatitis C and D, asthma, tuberculosis, valley fever, and seizures that affect his breathing and lungs. Ex. V, Trace Decl. ¶ 8. Don Wagner
18 is a 68-year-old man who has scar tissue and a persistent cough after surviving

19 cancer four years ago, high blood pressure and a thyroid condition. Ex. B, Wagner Decl. ¶¶ 2, 7. Cynthia Campbell is a 64-year-old woman who has Rheumatoid
20 Arthritis, an autoimmune condition that attacks the joints, liver, kidneys, and heart.

21 Ex. BB, Campbell Decl. ¶¶ 2, 5. Monique Castillo is a 43-year-old woman who has Type 1 diabetes and anxiety. Ex. Y, Castillo Decl. ¶ 2, 7. Cecibel Caridad Ortiz is
22 a 31-year-old woman who has Type 1 diabetes and anxiety. Ex. S, Ortiz Decl. ¶¶ 2,

23 8. Pedro Bonilla is a 36 year-old man who was diagnosed with Hepatitis C, which he contracted during a previous period of imprisonment. Ex. R, Bonilla Decl. ¶¶ 2,
24 21-22. Daniel Kauwe is a 42-year-old man who is immunocompromised and has

25 fungal infections on his skin. Ex. Z, Kauwe Decl. ¶¶ 2, 13. Michael Seif is a 35 year old man who suffered a collapsed lung in June of 2018. Ex. K, Seif Decl. ¶¶ 2, 7-8.
26 34 Ex. D, Goldenson Decl. ¶ 50.

27 35 Ex. D, Goldenson Decl. ¶ 48.

28 10

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 19 of 35 Page ID #:423

1 unnecessarily exposed to and potentially dying from COVID-19. Plaintiffs meet all

2 the requirements for injunctive relief because they are (1) likely to succeed on the

3 merits, (2) will suffer irreparable harm in the absence of preliminary relief, (3) the

4 balance of equities tips in their favor, and (4) an injunction is in the public interest.

5 Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008).

6

A. Plaintiffs Are Likely To Prevail On The Merits Of Their

Constitutional And ADA Claims. 7

8

Defendants’ response to the dangerous conditions in the Jail is so deficient

9 that it violates Plaintiffs’ rights under the Fourteenth Amendment, Eighth

10 Amendment, and the ADA and Rehabilitation Act. Each violation independently

11 satisfies a showing of likelihood of success on the merits. Here, Plaintiffs can

12 demonstrate that they will succeed under multiple theories.

13

1. Defendants Have Violated Plaintiffs’ Constitutional Rights

To Protection From The Risks Of This Highly Contagious

14

Disease.

15

16

Due to the conditions in the Jail, Plaintiffs could become ill or die, and

17 defendants’ failure to take appropriate precautions to protect both Plaintiffs who are

18 sentenced and pretrial detainees, violates their rights under the Eighth Amendment

19 and the Fourteenth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976)

20 (Eighth Amendment); Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979) (pretrial

21 detainees retain greater protections than convicted counterparts).

22

The only defense Class Members have against this novel, deadly disease is for

23 the Jail to implement all CDC guidelines and reduce populations to the level that

24 will allow for social distancing. And Defendants have been unwilling or unable to

25 do so. Defendants’ failure to release those members of the Medically Vulnerable

26 and Disability Subclasses whose release would not pose a danger to others creates

27 an untenable risk of serious injury and death. See Wilson v. Williams, 2020 WL

28 11

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 20 of 35 Page ID #:424

1 1940882, No. 4:20-cv-00794, at *1 (N.D. Ohio April 22, 2020) (granting

2 preliminary injunctive relief and finding Defendants acted with deliberate

3 indifference, where despite some proactive measures by Defendants, the prisoners

4 were unable to socially distance and where the prison had “shockingly limited

5 available testing…”).

6

COVID-19 is “a global crisis” that heightens the risk for those in jails, one of

7 “the most vulnerable groups among us.” Rose v. Baker, No. 17-15009, Dkt. 54 at 2

8 n.1 (9th Cir. Apr. 9, 2020) (internal quotations omitted). Urgent court intervention

9 is required. Tre McPherson, et al. v. Ned Lamont, et al., Civil No. 3:20-cv-534 (D.

10 Conn. May 6, 2020) (allowing Plaintiffs’ 2241 class action to proceed after finding

11 that “exhaustion of state remedies would be futile, because, under current

12 conditions, Plaintiffs are at substantial risk of contracting the disease prior to 13 completing the exhaustion process”).36 For this reason, the Ninth Circuit has

14 36 Plaintiffs have exhausted available administrative remedies under the Jail’s

15 official grievance process. See OCSD, Inmate/Detainee Grievance Procedure, §

1600.5.1 (undated). Plaintiffs filed emergency grievances requesting release or,

16 alternatively, provision of adequate sanitation supplies, personal protective

equipment, and space to be able to maintain at least 6 feet of distance from other

17 people. Several of the Plaintiffs received verbal denials of their grievances which

18

deputies informed them were not logged as grievances in the Jail's system and were not assigned a Jail Incident Number; because the grievance procedure instructs that

19

appeals can only be processed if they include the original grievance’s Jail Incident Number, these Plaintiffs have no other remedies available to them. See Exhibit CC,

20

Ortiz Grievance Decl.; Exhibit DD, Seif Grievance Decl.; Exhibit EE Esparza Grievance Decl.; Exhibit FF, Bonilla Grievance Decl.; Exhibit GG, Wagner

21 Grievance Decl.; see also Exhibit HH, Herrera Grievance Decl. One Plaintiff submitted a grievance that did not receive any response before his mental health

22 recently decompensated. Exhibit II, Jennifer Rojas Decl. Others received written

denials, which they timely appealed; these appeals were either denied or never

23 received a response. See Exhibit JJ, Trace May 4, 2020 Grievance Decl.; Exhibit

KK,, Trace May 5, 2020 Grievance Decl.; Exhibit LL Campbell Appeal Decl.; 24 Exhibit MM, Ahlman Appeal Decl.; Exhibit NN, Castillo Appeal Decl. Therefore,

25

Plaintiffs have exhausted the available administrative remedies.See Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (holding that where prison officials

26

improperly failed to process timely filed grievance, plaintiff exhausted available remedies).

27

28 12

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 21 of 35 Page ID #:425

1 recognized that incarcerated people face a “risk of serious consequences from the

2 COVID-19 virus, up to and including death, because of [] underlying medical

3 conditions.” Id.

4

Defendants are well aware of the risks posed by COVID-19 infections. Those

5 risks are “obvious” to anyone living in California, which has been under a state of

6 emergency since March 4, 2020 and under shelter-in-place orders since March 19, 7 2020.37 Sheriff Barnes has repeatedly been warned of these risks, including by his 8 own deputies.38 Despite these warnings, Defendants have not taken sufficient steps

9 to curb the spread of disease, such as providing adequate amounts of soap,

10 decreasing contact between detainees, and adopting effective practices to disinfect 11 shared surfaces.39

12

The Eighth and Fourteenth Amendments require that Defendants take action

13 to protect people in their custody from communicable diseases. Putting confined

14 persons at risk of disease is a sufficiently cruel and “unsafe, life-threatening

15 condition” such that it can constitute “cruel and unusual punishment” under the

16

17

18

37 Cal. Exec. Order No. N-33-20 (March 19, 2020), https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf (noting state of

19 emergency declared March 4, 2020).

38 See Letter from Jacob Reisberg and Daisy Ramirez, ACLU of Southern California, 20 to Sheriff-Coroner Donald Barnes, Re: COVID-19 Policy in Orange County Jails

21

(Mar. 12, 2020) (ACLU So Cal warning sheriff of risks); Letter from Transforming Justice, et al., to Sheriff Don Barnes, et al., Re: COVID-19 Containment in Orange

22

County Jails and Courthouses (Mar. 17, 2020) (multiple community organizations); Letter from Tom Dominguez, Ass’n of Orange County Deputy Sheriffs, to Sheriff

23

Don Barnes (Mar. 25, 2020) (deputies); Letter from Transforming Justice Orange County, et al., to Sheriff Don Barnes, et al., Re: COVID-19 in Orange County Jails

24 (Apr. 6, 2020) (multiple community organizations).

25

39 See Ex. Q, Ahlman Decl. ¶¶ 13, 18-20; Ex. BB, Campbell Decl. ¶¶ 10-11, 13-16, 20; Ex. Y, Castillo Decl. ¶¶ 8-11, 17-19; Ex. N, Godinez Decl. ¶¶ 6, 12, 15, 17, 19-

26

20; Ex. T, Hernandez Decl. ¶¶ 7-8, 10-12, 24, 27; Ex. V, Trace Decl. ¶¶ 16-18; Ex. B, Wagner Decl. ¶¶ 11-13, 15-18.

27

28 13

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 22 of 35 Page ID #:426
1 Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33 (1993).40 Accordingly,
2 the Constitution prohibits Jail officials from acting with deliberate indifference to
3 the risks that people in their custody will suffer harm from infectious diseases.
4 Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 828
5 (1994). Under the Eighth Amendment, officials act with deliberate indifference
6 when they: (1) have subjective knowledge of the risks or those risks are “obvious,”
7 and (2) fail to take reasonable action to abate those risks. Lemire v. Cal. Dep’t of
8 Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013) (quoting Farmer, 511 U.S. at
9 842); Delgado v. Barnes, 465 F. App’x 712, 712–13 (9th Cir. 2012). Under the
10 Fourteenth Amendment, only the objective prong of this test must be satisfied. 11 Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473–74 (2015).41
12 40 See also Trevizo v. Webster, No. 17-cv-5868-MWF-KS, 2018 WL 5917858, at *4;
13 (C.D. Cal. Sept. 6, 2018) (“It is well accepted that such substantial risks of harm 14 include exposure of inmates to a serious, communicable disease.”) (internal citation
marks omitted) (quoting Helling, 509 U.S. at 33); Lopez v. McGrath, No. 04-cv15 4782 MHP, 2007 WL 1577893, at *5 (N.D. Cal. May 31, 2007) (“Courts have 16 recognized a broad range of diseases which may form the basis for a claim of
deliberate indifference.”) (collecting cases); cf. Andrews v. Cervantes, 493 F.3d 17 1047, 1055–56 (9th Cir. 2007) (recognizing “imminent danger” posed to prisoners 18 by contagious “diseases [that] quite obviously cause serious health problems, and
can result in death.”). 19 41 Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018), cert. denied 20 sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794, 202 L. Ed. 2d 571 (2019)
(holding this test applies to violations of right to adequate medical care). In Swain 21 v. Junior, the Eleventh Circuit held that because defendants did not “subjectively 22 believe[] the measures they were taking were inadequate” and there was no evidence
that “defendants are ignoring or approving the alleged lapses in enforcement of 23 social-distancing policies,” plaintiffs did not satisfy the subjective prong of 24 deliberate indifference. See Swain v. Junior, No. 20-11622-C, 2020 WL 2161317, at
*5 (11th Cir. May 5, 2020). The Swain decision conflicts with controlling Ninth 25 Circuit case law. For pre-trial detainees, subjective knowledge or intent is not 26 required. Gordon, 888 F.3d at 1124-25. For sentenced prisoners, the subjective
prong of deliberate indifference requires two parts: (1) that prison officials were 27
28 14

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 23 of 35 Page ID #:427

1

These obligations include prevention, not merely treatment of those who

2 contract the disease. Helling, 509 U.S. at 33–34; Parsons v. Ryan, 754 F.3d 657,

3 676–77 (9th Cir. 2014) (rejecting defendants’ argument that Eighth Amendment

4 only applies to “current serious health problems”). Failure to follow CDC guidance

5 and other generally-accepted medical guidelines for disease prevention is evidence

6 of deliberate indifference. Cameron v. Bouchard, No. CV 20-10949, 2020 WL

7 1929876, at *2 (E.D. Mich. Apr. 17, 2020) (granting TRO based on jail’s failure to

8 comply with COVID-19 guidance from CDC and other public health experts),

9 modified on reconsideration, Cameron v. Bouchard, No. CV 20-10949, 2020 WL

10 1952836 (E.D. Mich. Apr. 23, 2020); Hernandez v. Cty. Of Monterey, 110 F. Supp.

11 3d 929, 942–45 (N.D. Cal. 2015) (finding that “known noncompliance” with CDC

12 tuberculosis guidelines “strongly indicates deliberate indifference to a substantial

13 risk of serious harm” and ordering officials to implement tuberculosis prevention

14 policies); cf, Valentine v. Collier, No. 20-20207, 2020 WL 1934431, *3-4 (5th Cir.

15 April 22, 2020) (staying injunctive relief for measures beyond CDC Guidance,

16 where plaintiffs did not contest that defendants were in compliance with CDC

17 Guidance). Any claim that is likely to succeed under the Eighth Amendment is

18 equally if not more likely to succeed under the Fourteenth Amendment. See id. at

19 1123–25.

20

Defendants’ actions fall far short of the constitutional requirements by failing

21 to protect detainees from unnecessary exposure to this potentially deadly virus.

22 Defendants’ duty requires that they protect the detainees in the Jail from the risk of

23

24 either subjectively aware of the risk to people in custody or it was “obvious” to them,
25 and (2) the officials lacked a reasonable justification for exposing the people to that
26 risk. Lemire, 726 F.3d at 1078. In this case, Defendants are clearly aware of the risks of harm, and—whatever their personal beliefs may be—failed to take reasonable
27 action to abate those risks.

28 15

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 24 of 35 Page ID #:428

1 contracting this highly communicable disease. Yet Defendants have ignored this

2 duty to Plaintiffs and the Class they seek to represent, who are at serious risk of

3 severe illness or death from COVID-19. Plaintiffs are able to show a strong

4 likelihood of success on the merits on this basis alone.

5

2. Defendants Are Unconstitutionally Punishing Members Of

6

The Pretrial Class.

7

In addition to violating the Eighth and Fourteenth Amendment deliberate

8 indifference standard for all Plaintiffs, Defendants’ failure to secure safe conditions

9 constitutes an impermissible punishment for the Pretrial Class. See, e.g., Bell v.

10 Wolfish, 441 U.S. 520, 535 (“[U]nder the Due Process Clause, a detainee may not

11 be punished prior to an adjudication of guilt in accordance with due process of

12 law.”); id. at n.16 (people detained pretrial retain greater protections than convicted

13 counterparts). A jailer’s conduct constitutes punishment if it is either not rationally

14 related to a legitimate, nonpunitive government purpose or is excessive in relation

15 to that purpose. Bell, 441 U.S. at 561; Kingsley, 135 S. Ct. at 2473–74; Demery v.

16 Arpaio, 378 F.3d 1020, 1030–33 (9th Cir. 2004).

17

Defendants have no legitimate, nonpunitive purpose to keep pretrial Plaintiffs

18 and the other members of the Pretrial Class under these conditions. Choosing to

19 violate public health guidelines during a global pandemic is not rationally related to

20 goals of health, safety, or even cost efficiency. Because it arbitrarily inflicts harm,

21 courts may infer it is punitive. See Demery, 378 F.3d at 1032 (live webcams in jail

22 are punitive because they are not rationally related to legitimate goals of security or

23 public education).

24

Even if the Jail’s failure to follow accepted practices for preventing the spread

25 of COVID-19 had a legitimate, nonpunitive purpose, exposing pretrial detainees to

26 lethal risks is excessive for that purpose. For this reason, the California Judicial

27 Council issued advisories encouraging state courts to increase releases from jails,

28 16

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 25 of 35 Page ID #:429

1 and the California Attorney General has clarified that county sheriffs have full

2 statutory authority to release people from custody in response to the COVID-19

3 emergency.42

4

3. Defendants Have Violated The ADA and Rehabilitation Act

By Discriminating against the Disability Subclasses.

5

6

Defendants’ actions also violate the ADA and Rehabilitation Act. Title II of

7 the ADA requires that public entities refrain from discriminating against qualified

8 individuals on the basis of a disability. 42 U.S.C. § 12132. Section 504 of the

9 Rehabilitation Act imposes parallel requirements on entities that receive federal

10 financial assistance. See Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir.

11 2001). In order to avoid disability discrimination in Jail in this public health

12 emergency, the only reasonable modification and nondiscriminatory method of

13 administration is release of the Disability Subclasses.

14

Plaintiffs and class members in the disability subclasses are protected people

15 with disabilities under the ADA and Section 504. 42 U.S.C. § 12102(1)(A), (2)(B),

16 28 C.F.R. § 35.108(d)(2)(iii). Plaintiffs and class members are “qualified” for

17 Defendants’ programs, services, and activities, including adjudication of their cases;

18 safe, constitutional living conditions during confinement; and medical care and

19 rehabilitative services to prepare for reentry after release. 42 U.S.C. § 12131(2); 28

20 C.F.R. § 35.104; 28 C.F.R. § Pt. 35, App. B (“[T]itle II applies to anything a public

21

22 42 See Advisory from California Chief Justice Tani Cantil-Sakauye to Presiding

23 Judges and Court Executive Officers of the California Courts (Mar. 20, 2020),

24

https://newsroom.courts.ca.gov/news/california-chief-justice-issues-secondadvisory-on-emergency-relief-measures; Attorney General of California,

25 Information Bulletin: COVID-19 and Statutory Authority Under Government Code

26

Section

8658

(Apr.

14,

https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/2020-dle-05.pdf.

2020),

27

28 17

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 26 of 35 Page ID #:430

1 entity does”). The Jail is a “public entity” for purposes of the ADA, and is bound to

2 comply with Title II. 42 U.S.C. § 12131(B).

3

Public entities must take affirmative steps to ensure that people with

4 disabilities can participate in all of the entity’s programs, benefits, and services on

5 an equal and equally safe basis as people without disabilities. 28 C.F.R.

6 §§ 35.102(a), 35.130(a), (b); Fraihat, 2020 WL 1932570, at *26-27 (C.D. Ca. Apr.

7 20, 2020); Pierce v. District of Columbia, 128 F. Supp. 3d 250, 266, 269 (D.D.C.

8 2015). These affirmative obligations include making reasonable modifications to

9 their policies, practices, or procedures where necessary to avoid disability

10 discrimination. 28 C.F.R. § 35.130(b)(7)(i). The ADA also prohibits public entities

11 from “utiliz[ing] criteria or methods of administration … [t]hat have the effect of

12 subjecting qualified individuals with disabilities to discrimination on the basis of

13 disability” or “[t]hat have the purpose or effect of defeating or substantially

14 impairing accomplishment of the objectives of the public entity’s program with

15 respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii).

16

The Disability Subclasses are entitled to reasonable modifications to ensure

17 they can participate equally and with equal safety in all activities, including the safe

18 adjudication of pretrial detainees’ pending criminal cases, constitutionally-adequate

19 care, medical treatment, and rehabilitative support during confinement. Disability

20 Subclass members cannot access these services if they are severely ill, unconscious,

21 or dead. See Fraihat, 2020 WL 1932570, at *26 (C.D. Ca. Apr. 20, 2020) (disabled

22 people in ICE detention entitled to reasonable accommodations in order to

23 participate in the “programmatic ‘benefit’” of the removal process). Given the fast-

24 moving, life-threatening nature of the COVID-19 pandemic, and its disproportionate

25 effect on the Disability Subclasses, immediate release is the only reasonable

26 modification. Defendants’ failure to release the Disability Subclasses violates the

27 ADA and the Rehabilitation Act.

28 18

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 27 of 35 Page ID #:431

1

Release of the disability subclasses is a reasonable modification and is not a

2 fundamental alteration. Indeed, Defendant Barnes is already engaging in early

3 releases as a result of COVID-19, but his actions have been insufficient to protect 4 all medically vulnerable, disabled people for whom release is especially critical.43

5 Cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 281 (2d Cir. 2003). Release is also

6 consistent with the Jail’s purposes, including administratively ensuring pretrial

7 detainees show up for court, and preparing post-conviction detainees for safe,

8 healthy release into their communities.

9

B. Plaintiffs Are Likely To Suffer Irreparable Harm, Including Death,

If This Court Does Not Issue The Requested Relief. 10

11

Plaintiffs are likely to suffer irreparable harm, including death, if they remain

12 incarcerated and Defendants maintain their existing policies and practices. Courts

13 “evaluate these factors via a ‘sliding scale approach,’ such that ‘serious questions

14 going to the merits’ and a balance of hardships that tips sharply towards the plaintiff

15 can support issuance of a preliminary injunction, so long as the plaintiff also shows

16 that there is a likelihood of irreparable injury and that the injunction is in the public

17 interest.” Arc of California v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014) (citations

18 omitted). The nature of the potential risk to Plaintiffs--death--weighs heavily in

19 favor of granting emergency injunctive relief.44 Further, if Defendants maintain

20 their current practices, COVID-19 will spread further into the Orange County

21 community and possibly more broadly.

22

23 43 Ex. D, Goldenson Decl. ¶ 48.

24 44 Further, courts find that a constitutional violation in itself amounts to an

25

irreparable injury. See Northsworthy v. Beard, 87 F.Supp.3d 1164, 1193 (N.D. Cal. 2015) (finding the deprivation of a prison inmate’s Eighth Amendment right

26

“sufficient to establish irreparable harm”) (citing Elrod v. Burns, 427 U.S. 347 (1976)).

27

28 19

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 28 of 35 Page ID #:432

1

Plaintiffs are locked inside an environment that the Defendants have failed to

2 ensure is safe. Defendants have not fully complied with the CDC Guidelines. More

3 detainees test positive each day, and infection rates are increasing exponentially.

4 COVID-19 is highly contagious and potentially deadly; it can also cause severe

5 health effects, including organ failure, even if the patient survives the infection.45

6 Accordingly, courts have found that detained or incarcerated persons, especially

7 those falling into higher risk categories, are able to show likelihood of irreparable

8 harm. See, e.g., Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850, at *6

9 (N.D. Cal. April 9, 2020) (citing Coronel v. Decker, 2020 WL 1487274, at *3) (“Due

10 to their serious underlying medical conditions, all Petitioners face a risk of severe,

11 irreparable harm if they contract COVID-19.”)); Kaur v. U.S. Dep't of Homeland

12 Sec., No. 2:20-cv-03172-ODW (MRWx), 2020 WL 1939386, at *3 (C.D. Cal. Apr.

13 22, 2020) (Order Granting Pl.'s Mot. TRO) (citing Fraihat v. U.S. Immigration and

14 Customs Enf’t, No. EDCV 19-01546-JGB (SHKx), Dkt. No. 132 at 36 (C.D. Cal.

15 April 20, 2020) (Order Granting Pls.’ Mot. Prelim. Inj.)) (“Even in the early days of

16 the pandemic, and with few exceptions, courts did not hesitate to find irreparable

17 harm as a result of potential COVID-19 exposure in prison and detention, including

18 in facilities where there had not been a confirmed case. At this stage of the pandemic,

19 the threat is even clearer.”).

20

Plaintiffs who are Medically Vulnerable are at especially grave and highly

21 probable risk of irreparable harm.46 Dr. Parker concluded that it is his professional

22

23 45 Ex. C, Parker Decl. ¶ 6.

46 Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *6 (S.D. Tex. 24 Apr. 17, 2020) (“Plaintiffs' alleged harm is both imminent and irreparable. The

25

COVID-19 pandemic has reached every state in our nation, and the numbers of infected and dead increase daily. According to the CDC, those with particular

26

medical vulnerabilities, including Plaintiffs, are particularly susceptible to serious illness and death. There is currently no vaccine or cure for COVID-19.”)

27

28 20

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 29 of 35 Page ID #:433

1 judgment that Medically Vulnerable individuals “are at greater risk of serious health

2 consequences” and “face an imminent threat of death unless they are released.”47

3 COVID-19 can cause severe health effects, including organ failure, even if the 4 patient survives the infection.48

5

Immediate release of the Medically Vulnerable and Disability Subclasses is

6 the only way to effectively mitigate the grave and imminent risk of harm to these

7 Class Members from this highly contagious, lethal disease with no treatment and no

8 cure.49 Without significant reductions in the jail population (as well as other

9 mitigation measures), the disease will continue to spread in the jail.50 Thus,

10 continued detention will expose the Medically-Vulnerable and Disability Subclasses

11 to unacceptably high levels of lethal risk.51 There is, in other words, no set of

12 conditions of confinement at the Orange County Jail that, given the current infection

13 prevalence and community spread of COVID-19, would be able to comply with the

14 Constitution or the ADA or Rehabilitation Act for the Medically-Vulnerable and

15 Disability Subclasses.

16

For the other Class Members, the Sheriff’s refusal to undertake population

17 reduction measures of sufficient speed and scope is causing an interacting set of

18 failures that make it impossible for the Jail to meet the CDC Guidance. As one

19 example, the Jail cannot effectively quarantine people it incarcerates. Given the

20 current number and growth of cases, it is already unlikely that there are sufficient

21 numbers of single cells to carry out necessary isolation and quarantine procedures.52

22 47 Ex. C, Parker Decl. ¶ 33. 23 48 Id. ¶ 6.
24 49 Ex. C, Parker Decl. ¶¶ 34-35; Ex. D, Goldenson Decl. ¶ 48. 25 50 Ex. D, Goldenson Decl. ¶¶ 33-37.
51 Ex. C, Parker Decl. ¶ 33. 26 52 Ex. D, Goldenson Decl. ¶¶ 43-44. 27

28 21

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 30 of 35 Page ID #:434

1 In the absence of adequate isolation and quarantine bedspace, the Jail will be forced 2 to use more cohort quarantines, thus exposing more people to infection risks.53

3

The increasing need for quarantine bedspace in turn puts additional pressure

4 on available bedspace in other parts of the Jail, leading to greater movement and 5 mixing that increases exposure risks.54 Because the Jail must reserve so much space

6 for quarantines, officials have been consolidating increasingly large groups of

7 people in dorms, making it even harder for non-quarantined individuals to socially 8 distance.55 As the number of confirmed and suspected cases grows and such

9 crowding worsens, the only way to instantly create more available bedspace is to

10 reduce the jail population.

11

The only way to relieve pressure on the system and meet the simultaneous

12 needs for adequate quarantine beds, adequate social distancing, and adequate 13 hygiene, PPE, and testing is to reduce the number of people in the Jail.56

14

The likelihood of irreparable harm factor tips the scale in favor of emergency

15 injunctive relief. Without judicial intervention, some Plaintiffs, especially the

16 Medically Vulnerable and Disabled, may die or suffer serious illness. For some,

17 incarceration in the Orange County Jail will be a death sentence, without any of the

18 due process associated with that most final of punishments.

19

20

21

22

23

24 53 Id at ¶¶ 45-46. 25 54 Id at ¶ 47.
55 Ex. N, Godinez Decl. ¶¶ 6, 18-19; Ex. B, Wagner Decl. ¶¶ 6, 16-17; Ex. T, 26 Hernandez Decl. ¶¶ 6-10, 30. 27 56 Ex. D, Goldenson Decl. ¶ 53.

28 22

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 31 of 35 Page ID #:435

1

C. The Potential Harms To Plaintiffs Are Much Greater Than Any Speculative Harm Defendants May Assert, and the Public's

2

Interest Favors the Requested Injunction.

3

The threatened injury to Plaintiffs and putative Class Members—sickness up

4 to and including organ failure and death—outweighs any theoretical injury posed by

5 the requested Injunction to Defendants.

6

Although Defendants may argue that releasing Plaintiffs somehow will impact

7 public safety, any such impact pales in comparison to the potential human cost and,

8 anyway, is purely speculative. Over a month ago, the California Judicial Council

9 recommended early releases for more categories of people than Defendants are

10 currently considering for early release. Sheriff Barnes also has broad authority to

11 move or release people in his custody in order to protect them from the COVID-19

12 pandemic. See California Government Code § 8658. That statutory authority

13 permits him to go well beyond what he has done thus far to protect those entrusted

14 to his care under § 8658, many of whom are still afforded the presumption of

15 innocence. The speculative risk that a person could commit a crime if released must

16 be weighed against the clear evidence that the longer Sheriff Barnes holds people in

17 the jail—particularly those in the Medically Vulnerable and Disability Subclasses—

18 the greater the risk that they will become infected and die.

19

Not only do detained people risk becoming sick themselves, but allowing

20 COVID-19 to spread in the Jail endangers the health of deputies, healthcare workers,

21 other staff, and attorneys visiting clients, as well as the health of their families.

22 Further, a continued outbreak in the Jail would strain hospital resources in the

23 Orange County community, potentially creating a humanitarian disaster. These

24

25

26

27

28 23

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 32 of 35 Page ID #:436

1 hospital resources are limited and are not equipped to handle the kind of outbreak 2 that is likely to occur in the Orange County Jail without immediate intervention.57

3

The public interest thus leans heavily in favor of the requested injunction.

4

D. Plaintiffs’ Requested Relief

5

Because Plaintiffs are likely to succeed on the merits, face risk of immediate

6 harm, and the balance of harms weighs decidedly in their favor, Plaintiffs request:

7

1. Release of Medically-Vulnerable and Disability Subclass Members

8

The members of the Medically-Vulnerable and Disability Subclasses all have

9 health conditions, disabilities, or characteristics that cause them to be exceptionally

10 vulnerable to death or serious harm to their health if they contract COVID-19. The

11 Orange County Jail has identified, but not released, approximately 488 detainees

12 who are medically vulnerable and at heightened risk of serious infection and death.

13 All people on this list are in the Medically-Vulnerable Subclass. Most of the people

14 on this list are also in the Disability Subclasses, including people of any age who 15 have certain underlying medical conditions also have an elevated risk.58 The

16 structure of the Jail makes it impossible to detain Medically-Vulnerable and 17 Disability subclass members in a constitutional manner during this pandemic.59

18 Given this, the Jail cannot consistently enforce social distancing and 20 second

19 handwashing by all incarcerated people (and all those who work at the Jail) in a

20 manner that would ensure the Medically-Vulnerable and Disability subclass

21

22 57 Ex. C, Parker Decl. ¶¶ 28-30; see Fraihat, 2020 WL 1932570, at *28 (“Plaintiffs

23

also attach evidence suggesting that a failure to protect the most vulnerable detainees could quickly overwhelm local hospitals with insufficient ICU beds or respirators,

24 diminishing the available health resources for all . . . If a preliminary injunction is entered, however, survival is maximized . . . .) (internal citations omitted).

25 58 Coronavirus disease (COVID-19) advice for the public: Myth busters, World

26

Health Organization, https://cutt.ly/dtEiCyc (Last visited on Apr. 28, 2020). 59 Ex. D, Goldenson Decl. ¶¶ 44-48; Ex. C, Parker Decl. ¶¶ 11-19.

27

28 24

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 33 of 35 Page ID #:437

1 members would not be at risk of being infected with the virus.60 Put simply,

2 Defendants cannot ensure their health and safety within the Jail. Recognizing this

3 grave risk to life, courts across the country have granted emergency habeas petitions

4 ordering the release of medically-vulnerable and disabled people from confinement.

5 The Defendants should establish release procedures to identify and release within 24

6 hours all Medically-Vulnerability and Disability Subclass members unless there is

7 proof of judicially-recorded findings by clear and convincing evidence that the

8 individual poses such a risk of flight or danger to others that no other condition can

9 mitigate that risk.

10

2. A Mandatory Plan To Address The Jail’s COVID-19 Crisis

11

The Court also should order Defendants to submit a plan to the Court in three

12 (3) days and appoint a qualified public health expert under Fed. R. Evid. 706, as

13 further described in the Complaint.

14

3. Implementing Constitutionally Sufficient Conditions at the Orange

County Jail. 15

16

Finally, the Court should order Defendants to take further steps to mitigate the

17 risk to Class Members who remain in the jail, including any additional releases that

18 are needed to prevent the further spread of COVID-19 in the jail.

19

CONCLUSION

20

For the foregoing reasons, this Court should grant this request for a

21 temporary restraining order and a preliminary injunction.

22

23 Respectfully submitted,

24 Dated: May 11, 2020

25

26 27 60 Ex. C, Parker Decl. ¶¶ 18-19.

28 25

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 34 of 35 Page ID #:438

1

/s/Cassandra Stubbs

/s/ Peter Eliasberg

/s/ Mitchell Kamin

/s/ John Washington

2 AMERICAN CIVIL AMERICAN

Mitchell Kamin

John

3

LIBERTIES UNION CIVIL

FOUNDATION

LIBERTIES

C.A. Bar No. 202788 Washington

Aaron Lewis

C.A. Bar No.

4 Cassandra Stubbs FUND OF

C.A. Bar No. 284244 315991

5

C.A. Bar No. 218849

SOUTHERN CALIFORNIA

Brittany Benjamin Schonbrun, C.A. Bar No. 323968 Seplow, Harris,

6 Olivia Ensign

Peter Eliasberg

COVINGTON &

Hoffman &

7 N.C. Bar No. 50689 C.A. Bar No.

Cristina Becker

189110

BURLING LLP

Zeldes LLP

1999 Avenue of the 11543 W.

8 N.C. Bar No. 46793 1313 W. Eighth St. Stars

Olympic Blvd.

9 201 W. Main St.,

Los Angeles, CA

Suite 402, Durham, 90017

Los Angeles, CA 90067-4643

Los Angeles, CA 90064

10 NC 27701

(424) 332-4800

(310) 399-7040

11 cstubbs@aclu.org ensign@aclu.or

alewis@cov.com mkamin@cov.com

jwashington@ss hhlaw.com

12 cbecker@aclu.org

bbenjamin@cov.com

13 Carl Takei
14 C.A. Bar No.
15 256229 Somil Trivedi
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19 5590229 AMERICAN CIVIL
20 LIBERTIES UNION
21 FOUNDATION 125 Broad Street,
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25 strivedi@aclu.org cspera@aclu.org
26 Zoe Brennan-
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Stacey Grigsby* D.C. Bar No. 491197 Amia Trigg** C.A. Bar No. 282890 COVINGTON & BURLING LLP One CityCenter 850 Tenth Street NW Washington, DC 20001 (202) 662-6000 sgrigsby@cov.com atrigg@cov.com

s/ Paul Hoffman Paul Hoffman C.A. Bar No. 71244 UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000, Irvine, CA 92687 (949) 824-0066

28 26

Case 8:20-cv-00835-JGB-SHK Document 41-1 Filed 05/11/20 Page 35 of 35 Page ID #:439

1

C.A. Bar No. 324912

2 AMERICAN CIVIL

3

LIBERTIES UNION FOUNDATION

4 Disability Rights

5

Program 39 Drumm Street

6 San Francisco, CA

7 94111 (415)-343-0769

8 zbrennan-

9 krohn@aclu.org

10
11 ATTORNEYS FOR PLAINTIFFS *pro hac vice application forthcoming
12 **C.D. California admission application forthcoming

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 27

Case 8:20-cv-00835-JGB-SHK Document 41-2 Filed 05/11/20 Page 1 of 4 Page ID #:440

1

UNITED STATES DISTRICT COURT

2

FOR THE CENTRAL DISTRICT OF CALIFORNIA,

3

SOUTHERN DIVISION

4

5 MELISSA AHLMAN, DANIEL KAUWE,
6 MICHAEL SEIF, JAVIER ESPARZA,

7 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
8 MARK TRACE, CECIBEL CARIDAD

9 ORTIZ, and DON WAGNER, on behalf of themselves and all others similarly situated,
10

11

Plaintiffs,

Civil Case No.: 8:20-cv-835-JGB-SHK

12

v.

13 DON BARNES, in his individual capacity
14 and official capacity as Sheriff of Orange
15 County, California; and Orange County, California,
16

17

Defendants.

[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE

18

19

[PROPOSED] ORDER GRANTING TEMPORARY RESTRAINING ORDER

20

Upon consideration of Plaintiffs’ Application for a Temporary Restraining Order

21 and Memorandum of Points and Authorities in support thereof, and for good cause

22 shown:

23

IT IS HEREBY ORDERED that Plaintiffs’ Application for a Temporary

24 Restraining Order be, and hereby is, GRANTED.

25

IT IS FURTHER ORDERED that Defendants shall immediately:

26

1. Identify all Medically-Vulnerable Subclass Members and Disability

27 Subclass Members in both the Pre-trial and Post-conviction Classes within six hours of

28 the Court’s order and adopt procedures for release of all such persons pursuant to 28

[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE Civil Case No.: 8:20-cv-835-JGB-SHK

Case 8:20-cv-00835-JGB-SHK Document 41-2 Filed 05/11/20 Page 2 of 4 Page ID #:441

1 U.S.C. § 2241 within twenty-four hours of submission of the list absent proof of

2 judicially-recorded findings by clear and convincing evidence that the individual poses

3 such a serious risk of flight or danger to others that no other conditions can mitigate, and

4 requiring Defendants to provide all persons released with educational resources on

5 COVID-19 including instructions that they should self-isolate for the CDC-recommended

6 period of time (currently 14 days) following release;

7

2. Immediately adopt mitigation efforts to protect all Class Members not

8 immediately released, including but not necessarily limited to:

9

a. Provide adequate spacing of six feet or more between incarcerated

10

people so that social distancing can be accomplished in accordance with

11

CDC guidelines

12

b. Effectively communicate to all incarcerated people, including low-

13

literacy and non-English-speaking people, sufficient information about

14

COVID-19, measures taken to reduce the risk of transmission, and any

15

changes in policies or practices to reasonably ensure that individuals

16

are able to take precautions to prevent infection;

17

c. Ensure that each incarcerated person receives, free of charge, an

18

individual supply of hand soap and paper towels sufficient to allow

19

frequent hand washing and drying each day; an adequate supply of

20

clean implements for cleaning such as sponges and brushes and

21

disinfectant hand wipes or disinfectant products effective against the

22

virus that causes COVID-19 for daily cleanings;

23

d. Ensure that all incarcerated people have access to hand sanitizer

24

containing at least 60% alcohol;

25

e. Provide access to daily showers and daily access to clean laundry,

26

including clean personal towels and washrags after each shower;

27

28

[PROPOSED] TEMPORARY RESTRAINING ORDER AND

2

ORDER TO SHOW CAUSE

Case 8:20-cv-00835-JGB-SHK Document 41-2 Filed 05/11/20 Page 3 of 4 Page ID #:442

1

f. Require that all Jail staff wear personal protective equipment, including

2

CDC-recommended surgical masks, when interacting with any person

3

or when touching surfaces in cells or common areas;

4

g. Require that all Jail staff wash their hands, apply hand sanitizer

5

containing at least 60% alcohol, or change their gloves both before and

6

after interacting with any person or touching surfaces in cells or

7

common areas;

8

h. Take the temperature of all class members, jail staff, and visitors daily

9

(with a functioning and properly operated and sanitized thermometer)

10

to identify potential COVID-19 infections;

11

i. Assess (through questioning) each incarcerated person daily to identify

12

potential COVID-19 infections;

13

j. Conduct immediate testing for anyone (class members, jail staff and

14

visitors) displaying known symptoms of COVID-19;

15

k. Ensure that individuals identified as having COVID-19 or having been

16

exposed to COVID-19 receive adequate medical care and are properly

17

quarantined (without resorting to cohorting, if possible), in a non-

18

punitive setting, with continued access to showers, recreation, mental

19

health services, reading materials, phone and video visitation with

20

loved ones, communications with counsel, and personal property;

21

l. Respond to all emergency (as defined by the medical community)

22

requests for medical attention within an hour;

23

m. Provide sufficient disinfecting supplies, free of charge, so incarcerated

24

people can clean high-touch areas or items (including, but not limited

25

to, phones and headphones) between each use;

26

n. Waive all medical co-pays for those experiencing COVID-19-related

27

symptoms;

28

[PROPOSED] TEMPORARY RESTRAINING ORDER AND

3

ORDER TO SHOW CAUSE

Case 8:20-cv-00835-JGB-SHK Document 41-2 Filed 05/11/20 Page 4 of 4 Page ID #:443

 
 Case 8:20-cv-00835-JGB-SHK Document 63 Filed 05/20/20 Page 1 of 7 Page ID #:1355

1 MITCHELL KAMIN (SBN 202788)
2 mkamin@cov.com AARON LEWIS (SBN 284244)
3 alewis@cov.com
4 BRITTANY BENJAMIN (SBN 323968) bbenjamin@cov.com
5 COVINGTON & BURLING LLP
6 1999 Avenue of the Stars Los Angeles, CA 90067-4643
7 Telephone: (424) 332-4800
8 Facsimile: (424) 332-4749

9 CASSANDRA STUBBS (SBN 218849)
10 cstubbs@aclu.org AMERICAN CIVIL LIBERTIES UNION
11 FOUNDATION
12 201 W. Main St., Suite 402 Durham, NC 27701
13 Telephone: (919) 682-5659
14 Facsimile: (919) 682-5961

15 Attorneys for Plaintiffs
16

17 [Additional Counsel continued on next page]

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

SOUTHERN DIVISION

21
MELISSA AHLMAN, DANIEL KAUWE, 22 MICHAEL SEIF, JAVIER ESPARZA,
23 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
24 MARK TRACE, CECIBEL CARIDAD
25 ORTIZ, and DON WAGNER, on behalf of themselves and all others similarly situated,
26

27

Plaintiffs,

Case No.: 8:20-cv-835-JGB-SHK
SUPPLEMENTAL DECLARATION OF DR. JOE GOLDENSON IN SUPPORT OF PLAINTIFFS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

28

SUPPLEMENTAL DECLARATION OF DR. JOE GOLDENSON IN SUPPORT OF PLAINTIFFS’ EX PARTE APPLICATION FOR

TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

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v.

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DON BARNES, in his official capacity as 3 Sheriff of Orange County, California; and
4 ORANGE COUNTY, CALIFORNIA

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Defendant.

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[Additional Counsel continued from first 7 page]

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STACEY GRIGSBY 9 sgrigsby@cov.com
10 AMIA TRIGG** (SBN 282890) atrigg@cov.com
11 COVINGTON & BURLING LLP
12 One CityCenter 850 Tenth Street NW
13 Washington, DC 20001
14 Telephone: (202) 662-6000 Facsimile: (202) 778-5906
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16 OLIVIA ENSIGN oensign@aclu.org
17 CRISTINA BECKER 18 cbecker@aclu.org
AMERICAN CIVIL LIBERTIES UNION 19 FOUNDATION 20 201 W. Main St., Suite 402
Durham, NC 27701 21 Telephone: (919) 682-5659 22 Facsimile: (919) 682-5961

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JOHN WASHINGTON (SBN 315991) jwashington@sshhlaw.com SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 Telephone: (310) 399-7040 Facsimile: (310) 399-7040
PETER ELIASBERG (SBN 189110) peliasberg@aclu.org AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St Los Angeles, CA 90017 Telephone: (213) 977-9500
PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL

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1 CARL TAKEI 2 ctakei@aclu.org
SOMIL TRIVEDI 3 strivedi@aclu.org 4 CLARA SPERA
cspera@aclu.org 5 AMERICAN CIVIL LIBERTIES UNION 6 FOUNDATION
125 Broad Street, 18th Floor 7 New York, NY 10004 8 Telephone: (212) 607-3300
Facsimile: (212) 607-3318
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RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000 Irvine, CA 92687 Telephone: (949) 824-0066
ZOE BRENNAN-KROHN (SBN 324912) zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415)-343-0769 Facsimile: (415) 255-1478

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14 ATTORNEYS FOR PLAINTIFFS 15 **C.D. California admission application forthcoming
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DECLARATION OF DR. JOE GOLDENSON

2 I, Dr. Joe Goldenson, hereby declare under penalty of perjury pursuant to 28

3 U.S.C. § 1746:

4 1. I have reviewed Orange County Sheriff Department Commander Joseph

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Balicki’s declaration, ECF No. 61. He reports that the Orange County Jail’s

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current population is 2,799 and that this “means the jail is operating at 46%

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capacity of available beds.” ECF No. 61. For multiple reasons, this

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calculation does not show that the Jail is operating consistent with CDC

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Guidance.

10 2. First, the calculation appears to use an inflated number of beds as its

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baseline. The rated capacity of a facility is the maximum number of

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incarcerated occupants for which a facility’s cells or dormitories, except

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those dedicated for health care or disciplinary separation housing, were

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planned and designed in conformity to Title 15 regulations (maintained by

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BSCC) and Title 24 regulations (maintained by the California Building

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Standards Commission). The California Board of State and Community

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Corrections (BSCC) has rated the capacity of the four facilities at the

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Orange County Jail at 3,975 beds.1 Thus, if the Jail’s current population is

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2,799, then it is operating at 70% of its rated capacity. The “available beds”

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calculation of 6,159 inmates is far larger than the rated capacity of the

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facility. For reasons that are not clear to me, it is also 181 beds larger than

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25 1 See State of California Board of State and Community Corrections 2016-2018 26 Biennial Inspection: Orange County’s Type II and Court Holding Facilities, Penal
Code Section 6031 (Sep. 26, 2018) at 26 (Intake Release Center: 406) & 37 27 (Central Men’s Jail: 1219) & 44 (Women’s Jail: 270) & 50 (Theo Lacy Facility: 28 2080).

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the statistics attached to Commander Balicki’s May 12, 2020 declaration,

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which claimed a total of 5,978 beds. See ECF 44-11 (Ex. A-4 to Declaration

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of Joseph Balicki).

4 3. Second, even if the calculation were based on the BSCC rated capacity,

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BSCC ratings were not designed with a pandemic that requires social

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distancing in mind. Even if the Jail did achieve fifty percent of its BSCC

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rated capacity, which would require an inmate population of less than

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2,000, it would not be operating consistent with CDC Guidance if, among

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other things, inmates in dormitory housing remained unable to maintain

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distance of six feet or more from each other at all times, including in

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communal areas. The population must be reduced overall so that it is

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possible for detained persons to be able to maintain six feet or more from

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others at all times; there is no double or triple bunking; there are adequate

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cells for individuals who are symptomatic or who have contracted COVID-

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19; and proper screening, quarantining, and isolation procedures can be put

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into place.

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show how much crowding is taking place in individual housing units. For

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example, in the large dormitories in Theo Lacy, there are 128 persons in the

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G/East Barrack dormitory and 108 persons in the F/East Dormitory. See

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ECF 44-11 (Ex. A-4 to Declaration of Joseph Balicki). These levels appear

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to be below the listed capacities of 192 beds. But again, the bed capacity as

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reported by the OCSD is higher than the rated capacity permitted by the

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BSCC. The rated capacity for those dormitories is 104 beds per dormitory.

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Cal. BSCC 2016-2018 Biennial Inspection, supra n.1, page 51. The current

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population levels in those dormitories exceeds the rated capacity, which—

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as noted above—is already excessive under the circumstances.

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1 5. I declare under penalty of perjury of the laws of the State of California and

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the United States that the foregoing declaration is true and correct. Executed

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on May 19, 2020 in Alameda County, California.

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DATED: May 19, 2020

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By: _________________________

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Dr. Joe Goldenson

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CERTIFICATE OF SERVICE
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I hereby certify that on this 20th day of May 2020, I electronically transmitted the
2
foregoing document to the Clerk of Court using the ECF system for filing and transmittal
3
of a Notice of Electronic Filing to the following ECF registrants:
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5 D Kevin Dunn
6 Kayla Nicole Watson Laura D Knapp
7 Rebecca Sorgen Leeds 8 Office of the County Counsel
County of Orange 9 333 West Santa Ana Boulevard Suite 407 10 P O Box 1379
Santa Ana, CA 92702-1379 11 714-834-3300 12 Fax: 714-834-2359
Email: kevin.dunn@coco.ocgov.com 13 Email: kayla.watson@coco.ocgov.com 14 Email: laura.knapp@coco.ocgov.com
Email: rebecca.leeds@coco.ocgov.com 15 Attorneys for Defendants
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/s/ Cassandra Stubbs Cassandra Stubbs

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. SACV 20‐835 JGB (SHKx)
Title Melissa Ahlman, et al. v. Don Barnes, et al.

Date May 26, 2020

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ/NOE U. PONCE Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings:

Order (1) GRANTING‐IN‐PART and DENYING‐IN‐PART Plaintiffs’ Application for Temporary Restraining Order or Preliminary Injunction (Dkt. No. 41); and (2) GRANTING Plaintiffs’ Motion for Provisional Class Certification (Dkt. No. 42) (IN CHAMBERS)

Before the Court are (1) Plaintiffs’ Application for Temporary Restraining Order or Preliminary Injunction and (2) Plaintiffs’ Motion for Provisional Class Certification. (“Application,” Dkt. No. 41; “Motion,” Dkt. No. 42.) The Court held a hearing on May 19, 2020. After considering the papers filed in support of and in opposition to the Motion and Application, the Court GRANTS the Motion and GRANTS‐IN‐PART and DENIES‐IN‐PART the Application.

I. BACKGROUND

On April 30, 2020, Plaintiffs filed their complaint against Defendants Don Barnes and Orange County. (“Complaint,” Dkt. No. 1.) The Complaint alleges five causes of action: (1) Unconstitutional Conditions of Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution; (2) Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S. Constitution; (3) Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution; (4) Discrimination on the Basis of Disability in Violation of Title II of the ADA; and (5) Discrimination on the Basis of Disability in Violation of Section 504 of the Rehabilitation Act. (Id.)

Plaintiffs filed the Motion and the Application on May 11, 2020. (Motion; Application.) In support of the Application, Plaintiffs filed:

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 Exhibit A (“Takei Declaration,” Dkt. No. 41‐3);  Exhibit B (“Wagner Declaration,” Dkt. No. 41‐4);  Exhibit C (“Parker Declaration,” Dkt. No. 41‐5);  Exhibit D (“Goldenson Declaration,” Dkt. No. 41‐6);  Exhibit H (“Ramirez Declaration,” Dkt. No. 41‐10);  Exhibit I (“Trace Declaration,” Dkt. No. 41‐11);  Exhibit J (“Second Wagner Declaration,” Dkt. No. 41‐12);  Exhibit K (“Seif Declaration,” Dkt. No. 41‐13);  Exhibit L (“Miranda Declaration,” Dkt. No. 41‐14);  Exhibit M (“Esparza Declaration,” Dkt. No. 41‐15);  Exhibit N (“Godinez Declaration,” Dkt. No. 41‐16);  Exhibit O (“Farias Declaration,” Dkt. No. 41‐17);  Exhibit P (“Lentz Declaration,” Dkt. No. 41‐18);  Exhibit Q (“Ahlman Declaration,” Dkt. No. 41‐19);  Exhibit R (“Bonilla Declaration,” Dkt. No. 41‐20);  Exhibit S (“Ortiz Declaration,” Dkt. No. 41‐21);  Exhibit T (“Hernandez Declaration,” Dkt. No. 41‐22);  Exhibit U (“Herrera Declaration,” Dkt. No. 41‐23);  Exhibit V (“Trace Declaration,” Dkt. No. 41‐24);  Exhibit W (“Cardone Declaration,” Dkt. No. 41‐25);  Exhibit X (“Baguiao Declaration,” Dkt. No. 41‐26);  Exhibit Y (“Castillo Declaration,” Dkt. No. 41‐27);  Exhibit Z (“Kauwe Declaration,” Dkt. No. 41‐28);  Exhibit AA (“Saem Declaration,” Dkt. No. 41‐29);  Exhibit BB (“Campbell Declaration,” Dkt. No. 41‐30);  Exhibit CC–NN (“Grievance Declarations,” Dkt. Nos. 41‐31–41‐42.)
Defendants opposed both the Motion and the Application on May 12, 2020. (“Application Opposition,” Dkt. No. 44; “Motion Opposition,” Dkt. No. 47.) In support of the Motion Opposition, Defendants filed Evidentiary Objections.1 (“Motion Objections,” Dkt. No 48.) In support of the Application Opposition, Defendants filed:

1 To the extent that the Court relies on objected‐to evidence, the objections are overruled. Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198 n.1 (C.D. Cal. 2010). “District courts, though, ‘may give . . . inadmissible evidence some weight . . . [to] prevent[ ] irreparable harm before trial.’ ” Weride Corp. v. Kun Huang, 379 F .Supp. 3d 834, 845 (N.D. Cal. 2019) (quoting Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009)). For the purposes of the preliminary injunction, “evidentiary issues ‘properly go to weight rather than admissibility.’ ” Id. (quoting Go Daddy Operating Co., LLC v. Ghaznavi, 2018 WL 1091257, at *14 (N.D. Cal. Feb. 28, 2018). Thus, the Court takes the objections under advisement in considering the Motion and Application.

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 Declaration of Martin Ramirez (“M. Ramirez Declaration,” Dkt. No. 44‐2);  Declaration of Joseph Balicki (“Balicki Declaration,” Dkt. No. 44‐10);  Declaration of C. Hsien Chian (“Chian Declaration,” Dkt. No. 44‐15);  Declaration of D. Kevin Dunn (“Dunn Declaration,” Dkt. No. 44‐22);  Request for Judicial Notice (“Defendants’ RJN,” Dkt. No. 45);  Evidentiary Objections (“Application Objections,” Dkt. No. 46).
On May 13, 2020, Plaintiffs replied in support of the Application. (“Application Reply,” Dkt. No. 49.) On May 14, 2020, Plaintiffs replied in support of the Motion. (“Motion Reply,” Dkt. No. 50.) On May 18, 2020, Plaintiffs submitted several supplemental declarations. The Court held a telephonic hearing on May 19, 2020.
II. FACTS
On December 31, 2019, China reported incidents of a pneumonia of unknown cause to the World Health Organization. Since then, that infectious disease, which came to be known as coronavirus disease 2019 (COVID‐19), has swept the globe, infecting millions and killing over three hundred thousand people. COVID‐19 is particularly dangerous to people who are older or have certain health conditions and disabilities, including diabetes, lung disease, heart disease, and compromised immune systems. (Goldenson Declaration ¶ 27; Parker Declaration ¶ 19.)
COVID‐19 has proven to be extremely contagious: it is airborne and survives on surfaces for days.2 To limit the spread of this potentially fatal disease, the governor of California—along with leaders around the globe—ordered residents to stay home, avoid non‐essential contacts, and to keep six feet away from others wherever possible.
At least 369 inmates at the Orange County Jail (“Jail”) have been infected with COVID‐ 19. 3 COVID‐19 is particularly dangerous in jails and prisons, where inmates are often unable to practice the recommended social distancing, lack access to basic hygienic necessities, and are regularly exposed to correctional officers and staff who move in and out of the Jail. (Goldenson Declaration ¶¶ 17–19.) The Centers for Disease Control (“CDC”) has issued special guidance that offer strategies to help prevent COVID‐19 infection in prisons and jails (“CDC Guidelines”). 4

2 See Neeltje van Doremalen, Ph.D., et al., Aerosol and Surface Stability of SARS‐CoV‐2 as Compared with SARS‐CoV‐1, N. England J. Med. 2020; 382:1564‐1567 https://www.nejm.org/doi/full/10.1056/NEJMc2004973 (last accessed May 15, 2020.)
3 Orange County Sheriff’s Department, COVID‐19 in OC Jails (May 18, 2020), https://www.ocsd.org/about_ocsd/covid_19.
4 Interim Guidance on Management of Coronavirus Disease 2019 (COVID‐19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (March 23,

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The CDC Guidelines recommend “placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended [personal protective equipment].”
A. Jail Facilities & Housing
The Jail houses inmates across four facilities:
 Theo Lacy has a rated capacity of 2,080 occupants.5 It is composed of a large number of barrack style dorms, seven module units where people are housed in two‐person cells that share common day rooms and shower facilities, and two module units where people are housed in single‐person cells that share common day rooms and shower facilities.
 The Men’s Central Jail has a rated capacity of 1,219 occupants. It is composed primarily of module units where people are housed in cells that vary in size from four to eight occupants; occupants share toilet and shower facilities. There are also dormitory style units where occupants share common day rooms, shower, and toilet facilities.
 The Women’s Central Jail has a rated capacity of 274 occupants. It is composed primarily of dormitory style units which sleep up to 30 occupants in one unit, where occupants share toilet and shower facilities. There is also one unit where people are housed in single cells and share shower facilities.
 The Intake and Release Center has a rated capacity of 407 occupants. It is composed primarily of module units where people are housed in single‐person cells that share common day rooms and shower facilities.
(Complaint ¶ 49.) Collectively, the Orange County Jail has a total of 51 medical isolation cells. (Id.)
B. Response to COVID‐19

2020) https://www.cdc.gov/coronavirus/2019‐ncov/community/correction‐ detention/guidance‐correctional‐detention.html
5 The rated capacity of a facility means the maximum number of incarcerated occupants that a facility’s cells and dormitories were designed to hold in conformity with Title 15 regulations (maintained by BSCC) and Title 24 regulations (maintained by the California Building Standards Commission). (Complaint ¶ 49.) The rated capacity does not include housing dedicated for health care or disciplinary separation housing. (Id.) The actual capacity of the facilities as identified by Defendants is significantly larger than the rated capacity. (Compare Complaint ¶ 49 with Balicki Declaration, Exhibit A.)

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1. Population Reduction Efforts

Since the outbreak, Defendants have reduced the Jail’s population. (Balicki Declaration ¶ 6.) However, they have failed to meet the 50% target reduction rate set by Defendants’ own Correctional Health Services. (Id.) Early release is available for vulnerable individuals, but only if those individuals have less than sixty days remaining on their sentence. (M. Ramirez Declaration ¶ 9.) Early release is not available for pre‐trial detainees. (Id.) Additionally, the California Judicial Council reduced bail to $0 for many offenses, allowing some pretrial detainees to await trial on bail. (Id. ¶ 9.)

Despite these population reduction measures, 2,826 individuals remain in the Jail. (Balicki Declaration ¶ 6, Exhibit A.) As of May 12, 2020, the actual capacity of each facility was:

 Central Men’s Jail:  Central Women’s Jail:  IRC:  Theo Lacy:

500 106 411 1746

(Id., Exhibit A.) Of the individuals remaining in the Jail, Defendants have identified 488 detainees who are medically vulnerable and at heightened risk of serious infection and death. (Complaint ¶ 7; Application at 5.) However, it is not clear where the medically vulnerable individuals are currently housed.

2. Quarantine Efforts

Joseph Balicki, a Commander in the Orange County Sheriff’s Department (“OCSD”) assigned to the Custody Operations Command, submits that the Jail uniformly quarantines new arrivals at the Jail for 14 days and tests them before release into the jail generally. (Balicki Declaration ¶ 7.) However, it appears that the quarantine is only a partial one, as “[i]nmates who are quarantined or in isolation continue to have access to the dayroom where they can shower and use the telephones.” (Id. ¶ 14.) Additionally, groups of quarantined individuals are mixed together. (Miranda Declaration ¶¶ 22, 25; Esparza Declaration ¶ 7; Godinez Declaration ¶11.)

The testimony of many inmates, who submit that new arrivals and individuals with known exposure are not always quarantined contradicts Officer Balicki’s testimony. (See, e.g., Seif Declaration ¶ 10; Wagner Declaration ¶ 14.) For example, one new arrival, whose father had COVID‐19, was not quarantined before he was moved into the general population. (Wagner Declaration ¶ 14.) Another inmate was not quarantined after a trip to the emergency room. (Ortiz Declaration ¶¶ 18–19.) These inconsistent quarantine practices have led to a cluster of new infections in at least one instance. (See Miranda Declaration ¶¶ 8, 25; Godinez Declaration ¶¶ 8–9; Goldenson Declaration ¶ 45; Farias Declaration ¶¶ 6–10; Lentz Declaration ¶¶ 5–11.)

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3. Facility‐Wide Social Distancing Opportunities

The Jail has implemented procedures to allow inmates to socially distance. (Balicki Declaration ¶ 9.) However, limits of the Jail’s design and capacity precludes full social distancing for the current inmate population. Multiple inmates sleep in the same room, with beds less than six feet apart. (Ahlman Declaration ¶¶ 7–8, 11–14; Bonilla Declaration ¶¶ 6–7; Ramirez Declaration ¶ 19; Lentz Declaration ¶ 12.) Inmates share the common spaces and phones, where it is impossible to remain six feet apart. (Ramirez Declaration ¶¶ 18, 19; Bonilla Declaration ¶¶ 6–7; Ortiz Declaration ¶¶ 5–7.) Some have been placed in overcrowded holding units. (Ahlman Declaration ¶ 5.)

The Jail allows symptomatic individuals to mingle in common areas with asymptomatic ones. (Hernandez Declaration ¶¶ 6– 10, 30; Ramirez Declaration ¶¶ 21.) Inmates are also transferred within the Jail, increasing the risk of exposure. (Miranda Declaration ¶¶ 4, 6, 9–12; Godinez Declaration ¶¶ 7, 10–13.)

4. Availability of Cleaning Supplies, Personal Hygiene Supplies, and Personal Protective Equipment

Inmates receive cleaning supplies including soap, disinfectant and towels. (Balicki Declaration ¶ 10.) However, they do not receive sufficent cleaning supplies to keep their living areas clean and disinfected. (See, e.g., Ahlman Declaration ¶¶ 18–20; Bonilla Declaration ¶ 12, 16; Baguiao Declaration ¶¶ 14–15; Campbell Declaration ¶ 20; Castillo Declaration ¶ 19; Esparza Declaration ¶ 12; Godinez Declaration ¶ 17; Hernandez Declaration ¶¶ 11–12; Miranda Declaration ¶¶ 17, 24–25; Trace Declaration ¶ 18; Wagner Declaration ¶ 15; Farias Declaration ¶ 13.) Some inmates report requesting soap but not receiving any for days. (See, e.g., Trace Declaration ¶ 2.) Others report that multiple housing sectors must share a single bottle of cleaning solution. (Ramirez Declaration ¶ 14.) Inmates also receive facial coverings. (Balicki Declaration ¶ 11.) Some inmates report that the cloth masks provided are not replaced for weeks or are made from blood‐ and feces‐stained sheets. (See Ramirez Declaration ¶¶ 10–11 & 14–15, 17.)

5. Testing

The Jail has a policy to test individuals with COVID‐19 symptoms as well as asymptomatic individuals before they are released from quarantine. (Chiang Declaration ¶¶ 12, 13.) On many ocassions, however, inmates were not tested after exposure to an individual with a confirmed case of COVID‐19. (Seif Declaration ¶ 9; Herrera Declaration ¶¶ 6,10; Wagner Declaration ¶ 14.) The Jail does not test the cellmates of symptomatic individuals or entire units when there are multiple confirmed cases. (Ramirez Declaration ¶¶ 20–23.) Inmates awaiting the outcome of a COVID‐19 test have been allowed to return to the general population. (Id.)

//
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C. State of the Outbreak

To date, there have been 369 positive tests for COVID‐19.6 As of May 12, 2020, all but one of the confirmed COVID‐19 tests had come from the Central Men’s Jail.7 (Balicki Declaration ¶ 8.)

III. LEGAL STANDARDS

A. Provisional Class Certification

Courts in the Ninth Circuit “routinely grant provisional class certification for purposes of entering injunctive relief.” Carrillo v. Schneider Logistics, Inc., 2012 WL 556309, at *9 (C.D. Cal. Jan. 31, 2012) (citing Baharona‐Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir. 1999)). Federal Rule of Civil Procedure 23 (“Rule 23”) governs the litigation of class actions. A party seeking class certification must establish the following prerequisites:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). After satisfying the four prerequisites of numerosity, commonality, typicality, and adequacy, a party must also demonstrate one of the following: (1) a risk that separate actions would create incompatible standards of conduct for the defendant or prejudice individual class members not parties to the action; (2) the defendant has treated the members of the class as a class, making appropriate injunctive or declaratory relief with respect to the class as a whole; or (3) common questions of law or fact predominate over questions affecting individual members and that a class action is a superior method for fairly and efficiently adjudicating the action. See Fed. R. Civ. P. 23(b)(1)–(3).8

6 Orange County Sheriff’s Department, COVID‐19 in OC Jails (May 26, 2020), https://www.ocsd.org/about_ocsd/covid_19.
7 While the Orange County Sherriff’s Department releases information every week day regarding the number of Jail‐wide positive tests, it does not break those numbers down by facility. The Court must therefore rely upon the break down provided in the Balicki Declaration, which accounts for only 322 of the 369 positive tests. It is possible, therefore, that the other facilities may now have more confirmed COVID‐19 tests.
8 While some circuits have adopted an “ascertainability” prerequisite to certification, the Ninth Circuit has not. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 n.4 (9th Cir. 2017) (“ConAgra cites no other precedent to support the notion that our court has adopted an ‘ascertainability’ requirement. This is not surprising because we have not. Instead, we have addressed the types of alleged definitional deficiencies other courts have referred to as ‘ascertainability’ issues . . . through analysis of Rule 23’s enumerated requirements.”).

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A trial court has broad discretion regarding whether to grant a motion for class certification. See Bateman v. Am. Multi‐Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). However, “[a] party seeking class certification must affirmatively demonstrate compliance with [Rule 23]—that is, the party must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal‐Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A district court must conduct a “rigorous analysis” that frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Id. at 351. “Courts typically proceed claim‐by‐claim in determining whether the Rule 23 requirements have been met, particularly as to the Rule 23(a)(2) and (b)(3) requirements of common questions and predominance.” Allen v. Verizon California, Inc., 2010 WL 11583099, at *2 (C.D. Cal. Aug. 12, 2010).

Rule 23 further provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues,” Fed. R. Civ. P. 23(c)(4), or the “class may be divided into subclasses that are each treated as a class under this rule,” Fed. R. Civ. P. 23(c)(5). “This means that each subclass must independently meet the requirements of Rule 23 for the maintenance of a class action.” Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981).

B. Preliminary Injunction

“A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citations omitted). An injunction is binding only on parties to the action, their officers, agents, servants, employees and attorneys and those “in active concert or participation” with them. Fed. R. Civ. P. 65(d).

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit employs the “serious questions” test, which states “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citations omitted).

IV. DISCUSSION

A. Class Certification

For purposes of the emergency injunctive relief, Plaintiffs seek provisional certification of the following classes:

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 The Pre‐Trial Class: “[A]ll current and future pre‐trial detainees incarcerated at the Orange County Jail”
 Post‐Conviction Class: “[A]ll current and future post‐conviction prisoners incarcerated at the Orange County Jail from the present until the COVID‐19 pandemic has abated”
(Motion at 2.) For both the pre‐trial and post‐conviction classes, Plaintiffs additionally seek provisional certification of the following sub‐classes
 Medically‐Vulnerable Subclass: “[A] subclass of all persons who, by reason of age or medical condition, the CDC has identified as particularly vulnerable to injury or death if they were to contract COVID‐19”
 Disability Subclass: “[A] subclass of all persons within the Medically Vulnerable Subclasses who are vulnerable because of a disability as defined in federal law”
(Id.) Federal judges around the country have provisionally certified similar classes of detainees brining claims arising from the COVID‐19 pandemic. See, e.g., Roman v. Wolf, No. 5:20‐cv‐768, (TJH) (PHV) (C.D. Cal. Apr. 23, 2020), Dkt. No. 52; Zepeda Rivas v. Jennings, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020); Mays v. Dart, 2020 WL 1812381, at * 4 (N.D. Ill. Apr. 9, 2020); Wilson v. Williams, 2020 WL 1940882, at *8 (N.D. Ohio Apr. 22, 2020). In a sparse Opposition, Defendants argue with minimal citation to the law that the proposed classes and subclasses fail to meet the requirements of Rule 23. (See generally Motion Opposition.) Defendants are mistaken.
1. Numerosity
A class satisfies the prerequisite of numerosity if it is so large that joinder of all class members is impracticable. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). To be impracticable, joinder must be difficult or inconvenient but need not be impossible. Keegan v. American Honda Motor Co., 284 F.R.D. 504, 522 (C.D. Cal. 2012). There is no numerical cutoff for sufficient numerosity. Id. However, forty or more members will generally satisfy the numerosity requirement. Id.
In their Motion, Plaintiffs estimate that there 3,047 individuals incarcerated in the Jail. (Motion at 13.) Relying on the most recent data collected by the California Board of State and Community Corrections, they further estimate that approximately 57% of Jail population is being held pretrial and 43% of the population is serving a sentence of incarceration. (Id.) Based on these estimates both the Pre‐Trial and Post‐Conviction classes likely have over 1,000 individuals. Additionally, Plaintiffs estimate that “40% of the Pre‐trial and Post‐conviction Classes are expected to be members of the Disability Subclasses, with an even greater number being a part of each Medically‐Vulnerable Subclass.” (Motion at 13.) Based on that figure about 1,200 inmates will be members of the Disability Subclass and at least 1,200 will be members of the Medically‐Vulnerable Subclass.

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Defendants cryptically respond that numerosity is not satisfied because “[t]here is no issue that the class is so numerous that joinder of members is impracticable.” (Motion Opposition at 4.) But despite their contention that “the Orange County Sheriff’s Department can provide a specific number as to the inmates in custody on a particular day,” they fail to provide any number—even an estimate—that the Court can use to assess numerosity. (See id.) The Court therefore relies on the figures provided by Plaintiffs and finds the class is sufficiently numerous that joinder of all class members would be impracticable for both classes and both subclasses.

2. Commonality

The commonality requirement is satisfied when plaintiffs assert claims that “depend upon a common contention . . . capable of classwide resolution—which means that a determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal‐Mart, 564 U.S. at 350; see also id. (“What matters to class certification . . . is not the raising of common questions . . . but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”) (internal quotation marks and citations omitted). Differences among putative class members can impede the generation of such common answers. Id. In the Ninth Circuit, “Rule 23(a)(2) has been construed permissively. . . . The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003).

Plaintiffs argue that commonality is satisfied because all class members are incarcerated in Defendants’ Jail during the COVID‐19 pandemic and all are subject to the same policies that they now argue are unconstitutional. (Motion at 15–16.) Defendants argue that commonality is not satisfied because “[e]ach individual has a specific medical profile.” (Motion Opposition at 4.) While that may be the case, Plaintiffs challenge Defendants’ institution‐wide response and seek institution‐wide injunctive relief. Accordingly, the relevant questions such as deliberate indifference will be decided on a classwide, rather than individual, basis. See Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (“Commonality is satisfied where the lawsuit challenges a system‐wide practice or policy that affects all of the putative class members.”). The Court therefore finds Plaintiffs have established commonality for both classes and both subclasses.

3. Typicality

“The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). The typicality inquiry focuses on the claims, not the specific facts underlying them. Just Film, Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017). “The requirement is permissive, such that ‘representative claims are typical if they are reasonably coextensive with those of absent class members; they need not be substantially identical.’” Id. (quoting Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014)). “Measures of typicality include

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whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Id. (internal quotations and citations omitted). The applicability of different defenses to the class representative will preclude typicality if “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Id. (quoting Hanon, 976 F.2d at 508).

Here, Plaintiffs are individuals incarcerated at Defendants’ Jail who assert that the conditions of confinement at the Jail during the COVID‐19 violate their constitutional and other statutor rights. (Motion at 17.) They advance the same legal arguments for the proposed class. Defendants appear to argue that typicality is not met because “each individual Plaintiff’s claim is subject to unique defenses.” (Motion at 17.) But they fail to identify specifically what those individual defenses are—if Plaintiffs’ claims were truly subject unique defenses that would distract them from prosecuting the class claims, presumably Defendants would be able to readily identify them. Because they cannot do so, the Court finds that Plaintiffs are typical of the proposed classes and subclasses.

4. Adequacy

In determining whether a proposed class representative will adequately protect the interests of the class, the court asks whether the proposed class representatives and their counsel have any conflicts of interest with any class members and whether the proposed class representatives and their counsel will prosecute the action vigorously on behalf of the class. Hanlon, 150 F.3d at 1020.

Plaintiffs represent that they have no conflicts with the proposed classes and subclasses. (Motion at 18.) Additionally, Plaintiffs’ counsel represents that they will prosecute this action vigorously and have experience litigating similar class actions in the same area of law. (Id. at 19.) Defendants do not appear to challenge adequacy. Accordingly, the Court finds the adequacy requirement is satisfied.

5. Rule 23(b) Requirements

Plaintiffs seek to certify their proposed sub‐class under Rule 23(b)(2). (Motion at 19– 20.) Rule 23(b)(2) permits certification of a class seeking declaratory or injunctive relief where “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). In the Ninth Circuit, “[i]t is sufficient to meet the requirements of Rule 23(b)(2) [when] class members complain of a pattern or practice that is generally applicable to the class as a whole.” Rodriguez I, 591 F.3d at 1125 (9th Cir. 2010) (internal citation and quotation marks omitted) (finding certification under Rule 23(b)(2) proper where “proposed members of the class each challenge Respondents’ practice of prolonged detention of detainees without providing a bond hearing and seek as relief a bond hearing with the burden placed on the government”). Thus, the critical inquiry is “whether class members

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seek uniform relief from a practice applicable to all of them.” Rodriguez I, 591 F.3d at 1125.
Here, Plaintiffs challenge the conditions at the Jail and Defendants’ alleged insufficient response to the COVID‐19 pandemic. They allege that the conditions of confinement violate their federal constitutional and statutory rights. And they seek uniform injunctive relief: an order compelling Defendants to release members of the Disabled and Medically‐Vulnerable subclasses and mitigate the dangers of COVID‐19 within the Jail. See Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014) (Rule 23(b)(2) satisfied where state department of corrections established policies and practices that placed “every inmate in custody in peril” and all class members sought essentially the same injunctive relief). For purposes of this inquiry, “[t]he fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2).” Id. Here, a single injunction would provide relief to each class member. See Wal‐Mart, 564 U.S. at 360. Accordingly, the Court concludes Rule 23(b)(2)’s requirements are satisfied.9
B. Preliminary Injunction
1. Success on the Merits or Serious Questions
Defendants argue that Plaintiffs are not likely to succeed on the merits for three reasons: (1) Plaintiffs failed to exhaust administrative remedies; (2) Plaintiffs fail to establish deliberate indifference; and (3) Plaintiffs fail to establish that Defendants discriminated against any members of the Disability Subclass.
a. Exhaustion
The Prison Litigation Reform Act of 1995 (“PLRA”) provides that, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Defendants argue that Plaintiffs’ section 1983 claims must fail because they have failed to exhaust their administrative remedies. Plaintiffs, however, have submitted evidence that they filed

9 Defendants make several additional arguments in the Motion Opposition which are wholly untethered to the law. For example, they argue about predominance and ongoing litigation by members of the class. (Motion Opposition at 4.) As considerations relevant to Rule 23(b)(3) classes, such arguments are inappropriate here—where Plaintiffs seek certification of Rule 23(b)(2) classes. Additionally, Defendants advance an obscure argument that appears to conflate ascertainability and standing. (Id. at 7.) The Ninth Circuit does not recognize an ascertainability requirement. See Briseno, 844 F.3d at 1125 n.4. Moreover, even if the proposed class included individuals without standing (and it does not, Defendant’s argument on that point is incomprehensible), the existence of putative members without standing does not defeat certification.

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grievances with the Jail. (See Grievance Declarations.) The Jail refused to adjudicate some of the grievances and denied others but failed to adjudicate the appeal. (Id.) “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is deemed to have exhausted available administrative remedies.” See Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017); see also Karas v. Marciano, 2017 WL 6816858, at *4 (C.D. Cal. Nov. 13, 2017) (“When a prisoner submits a [grievance] but never receives a response thereto, the administrative remedies are ‘rendered effectively unavailable by defendants’ actions.’”). Accordingly, the Court concludes that Plaintiffs have exhausted available administrative remedies for their section 1983 claims.
b. Deliberate Indifference
Plaintiffs challenge the conditions of their confinement under both the Eighth and Fourteenth Amendments. To succeed under either amendment, Plaintiffs must establish “deliberate indifference” on the part of Defendants. Farmer v. Brennan, 511 U.S. 825, 846 (1994) (Eight Amendment); Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473–74 (2015) (Fourteenth Amendment). As the Ninth Circuit has explained, “[d]eliberate indifference is the conscious or reckless disregard of the consequences of one’s acts or omissions. It entails something more than negligence but is satisfied by something less than acts or omission for the very purpose of causing harm or with knowledge that harm will result.” Gantt v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir. 2013).
To succeed on their Eighth Amendment claim, Plaintiffs need to prove both objective and subjective deliberate indifference. Farmer, 511 U.S. at 842. Their Fourteenth Amendment claim, however, requires only that they prove objective deliberate indifference. Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (“[C]laims for violations of the right to adequate medical care brought by pretrial detainees against individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate indifference standard”) (internal quotations omitted).
i. Objective Deliberate Indifference
To satisfy the objective prong, Plaintiffs must show an “objectively intolerable risk of harm.” Farmer, 511 U.S. at 842. The Ninth Circuit has established a four‐part test to determine objective deliberate indifference:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

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Gordon, 888 F.3d at 1125. Plaintiffs have satisfied all four elements.
The risk of harm within the Jail is undeniably high: at least 369 inmates have contracted COVID‐19 and the Jail lacks the ability to contain the infection. Because the virus is contagious, absent some dramatic change in course, the uninfected inmates are likely to contract the disease if they remain in the Jail. And the 488 medically vulnerable inmates are likely to get very sick and possibly die.
The parties vigorously debate whether Defendants have complied with the CDC Guidelines. A review of the evidence submitted suggests that although Defendants may have a policy to comply with the CDC Guidelines, actual compliance has been piecemeal and inadequate.10 Defendants claim to give inmates soap and other personal hygiene supplies, but inmates report that they have not been given enough soap to frequently wash or clean their living spaces. (Compare Balicki Declaration ¶ 10 with Trace Declaration ¶ 2.) Defendants claim to quarantine new arrivals and those with a known exposure, but inmates declare that Defendants allow quarantined individuals to use the same common spaces as the general population. (Compare Balicki Declaration ¶ 7 with ¶ 14.) Defendants claim to be testing inmates, but inmates report that Defendants are not testing all suspected cases. (Compare Chiang Declaration ¶¶ 12, 13 with Seif Declaration ¶ 9; Herrera Declaration ¶¶ 6,10; Wagner Declaration ¶ 14.) Defendants claim that they have a policy to allow inmates to social distance, but inmates report that their bunks are not six feet apart and that social distancing is impossible in the common areas given the number of people. (Compare Balicki Declaration ¶ 9 with Ahlman Declaration ¶¶ 7–8, 11–14; Bonilla Declaration ¶¶ 6–7; Ramirez Declaration ¶ 19; Lentz Declaration ¶ 12.)
At the May 19, 2020 hearing Defendants insisted that the Court should ignore these inmate accounts because they are stale—compliance with the CDC Guidelines is evolving at the CDC Guidelines themselves are evolving. However, the current version of the relevant CDC Guidelines was issued March 23, 2020. If the Defendants were not in compliance with the CDC Guidelines over a month after the Guidelines were issued (when most of the inmate declarations were signed) there is no reason to expect that they have since come into compliance. Moreover, Plaintiffs have submitted recent supplemental declarations demonstrating that the noncompliance is ongoing. For example, on May 13, 2020, an inmate was tested for COVID‐19 after exhibiting symptoms but left in the tank with others who had not

10 To the extent that the OCSD officer testimony submitted by Defendants conflicts with the inmate testimony submitted by Plaintiffs, the Court finds the inmate testimony more credible. The officer testimony is general, brief, and only broadly describes the Jail’s policies—it fails to explain with specificity how the policies have been implemented and enforced and the degree of compliance. Conversely, the inmate testimony describes repeatedly and in exacting detail Defendants’ failures to implement the CDC Guidelines. Inmate testimony is replete with examples; officer testimony is devoid of it. Moreover, dozens of inmates submit corroborating declarations; while only three OCSD representatives submit declarations.

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been infected. (Ahlman Supplemental Declaration ¶ 3.) These continuing compliance failures are not isolated incidents that effect a single Plaintiff. When Defendants fail to quarantine symptomatic individuals or provide sufficient cleaning supplies, all inmates are at risk. Finally, Defendants have submitted no persuasive evidence contradicting the accounts of the inmates. While they submit testimony from three OCSD officers stating broadly that OCSD has policies to provide cleaning supplies, to quarantine individuals, and to test those with symptoms, Defendants fail to provide any specific examples of actual compliance with these policies (e.g., detailed explanations of quarantine practices, numbers of cleaning supplies distributed, etc.).
As Plaintiffs argued at the hearing, the numbers speak for themselves. Defendants’ broad and unsupported claim of compliance is belied by the fact that there are 369 confirmed COVID‐19 cases in the Jail—up from only 26 confirmed cases less than a month ago on April 22, 2020.11 Assuming a current Jail population of 2,826, the rate of COVID‐19 infection at the Jail is 12.4%. That number is astronomical compared to the rate of infection in the Orange County general population, which is about 0.14%.12 An individual incarcerated at the Jail is nearly one hundred times more likely to get COVID‐19 than the average resident of Orange County.13
At the hearing, Defendants argued that the number of confirmed COVID‐19 cases is skyrocketing due to the increased availability of testing. The below chart maps the OCSD’s reported testing results from April 22, 2020 through May 18, 2020. It reveals there has been no recent dramatic surge in testing. Indeed, the rate of testing has remained relatively consistent since April 22, 2020, with the largest number of tests given on May 5, 2020—three weeks ago. Defendants, therefore, cannot simply explain away the soaring number of confirmed cases with a claim of increased testing. Moreover, of the 369 confirmed COVID‐19 cases in the Jail, only 302 have recovered to date, meaning that are 57 inmates who likely contracted the virus within the past two weeks.
// // // // // // // //
11 https://www.ocsd.org/documents/sheriff/COVIDStats4.22.20.pdf
12 Johns Hopkins University, COVID‐19 Status Report, Orange County https://bao.arcgis.com/covid‐19/jhu/county/06059.html
13 Given the dramatic disparity between the rates of infection at the Jail and in the general population, Defendants argument that Plaintiffs may be safer in the Jail than they would out of it is statistically absurd. (See Application Opposition at 21‐22.)

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Jail COVID‐19 Testing Results April 22, 2020 ‐ May 18, 202014

Date
April 22, 2020 April 23, 2020 April 24, 2020 April 27, 2020 April 28, 2020 April 29, 2020 April 30, 2020 May 1, 2020 May 4, 2020 May 5, 2020 May 6, 2020 May 7, 2020 May 8, 2020 May 11, 2020 May 12, 2020 May 13, 2020 May 14, 2020 May 15, 2020 May 18, 2020 May 19, 2020 May 20, 2020 May 21, 2020 May 22, 2020 May 26, 2020

Total Tests15
63 68 147 182 226 227 331 387 459 649 673 708 738 762 793 848 886 907 979 990 1,013 1,031 1,050 1,118

New Tests16
N/A 5 79 35 44 1 4 56 72
190 24 35 30 24 31 85 38 21 72 11 23 18 19 68

Positive Tests
26 23 82 93 96 117 122 168 219 227 241 251 259 289 322 331 335 335 350 360 364 364 365 369

Negative Tests 35 27 56 42 63 89 189 199 220 258 279 305 320 363 398 427 498 495 543 596 609 627 645 702

Recovered
10 12 14 17 20 22 22 23 27 31 33 41 54 100 117 126 135 135 196 199 235 252 261 302

Based on all the evidence submitted, the Court concludes that Defendants are not complying meaningfully with the CDC Guidelines. Defendants are correct that the CDC Guidance “is not a statute, nor is it a mandate.” (See Application Opposition at 5.) What Defendants fail to appreciate with this argument, however, is that the CDC Guidance provide
14 Data pulled from daily .pdfs published on Orange County Sheriff’s Department, COVID‐19 in OC Jails at https://www.ocsd.org/about_ocsd/covid_19.
15 This figure also includes tests with pending results. The daily pending results figure has not been included in the chart.
16 The Court calculated the number of new tests given each day by taking the total test figure for each day and subtracting the total test figure from the day before.

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guidance regarding the appropriate response to the risk presented by COVID‐19. The suggestions laid out in the CDC Guidelines represent expert medical advice regarding measures needed to limit the spread of COVID‐19. An institution that is aware of the CDC Guidelines and able to implement them but fails to do so demonstrates that it is unwilling to do what it can to abate the risk of the spread of infection. In other words, failure to comply demonstrates deliberate indifference toward the health and safety of the inmates. See Wilson v. Williams, 2020 WL 1940882, at *1 (N.D. Ohio April 22, 2020) (finding Defendants acted with deliberate indifference, where despite some proactive measures by Defendants, the prisoners were unable to socially distance and where the prison had “shockingly limited available testing . . .”). It is not enough for Defendants to nominally comply with some portions of the Guidelines sometimes so that they can claim “we are testing” and “we are providing soap”—they must fully and consistently comply so that the compliance is an effective tool to abate the spread of infection.
Moreover, the CDC Guidelines focus their advice on prevention and management of single suspected cases. They do not contemplate hundreds of infections within the population. Accordingly, the CDC Guidelines represent the floor, not the ceiling, of an adequate response to COVID‐19 at the Jail, with at least 369 COVID‐19 cases. As the rate of infection rises, so must the required response. The amount of care required in a prison with no suspected cases is far different than the amount of care required in an institution with hundreds of cases: one bar of soap a week may not be deliberately indifferent where there are no infections but it certainly is where—as here—there are hundreds of infected individuals with new cases daily. See Hernandez v. Cty. Of Monterey, 110 F. Supp. 3d 929, 942–45 (N.D. Cal. 2015) (finding that “known noncompliance” with CDC tuberculosis guidelines “strongly indicates deliberate indifference to a substantial risk of serious harm” and ordering officials to implement tuberculosis prevention policies). Rates of COVID‐19 infection at the Jail are skyrocketing, and Plaintiffs have demonstrated a likelihood of establishing that Defendants are deliberately indifferent to that fact.
ii. Subjective Deliberate Indifference
To succeed on their Eight Amendment claim, Plaintiffs must also prove subjective deliberate indifference. In other words, they must show that Defendants “knew[] of and disregard[ed] an excessive risk to inmate health or safety.” Estate of Ford v. Ramirez‐Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002) (quoting Farmer, 511 U.S. at 834 (1994)). Defendants undoubtedly know of the risks posed by COVID‐19 infections. Indeed, Defendant Barnes has been repeatedly warned by several organizations—including a group of Orange County Sherriff deputies—of the dangers from COVID‐19 in the Jail.17 Defendants also knew, by way of the CDC
17 See, e.g., Letter from Jacob Reisberg and Daisy Ramirez, ACLU of Southern California, to Sheriff‐Coroner Donald Barnes, Re: COVID‐19 Policy in Orange County Jails (Mar. 12, 2020) (ACLU So Cal warning sheriff of risks); Letter from Transforming Justice, et al., to Sheriff Don Barnes, et al., Re: COVID‐19 Containment in Orange County Jails and Courthouses (Mar. 17,

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Guidelines, that failure to take certain precautionary measures would result in an increase in the spread of infections. The Court concludes that Plaintiffs have established the likelihood of subjective deliberate indifference. Accordingly, Plaintiffs have shown a likelihood of success on their Eight Amendment claim.
c. Disability Claims
Defendants argue that Plaintiffs have not established a likelihood of success on their ADA and Unruh Act claims because they “do not allege, and cannot show, that Defendants discriminated against them because of their medical condition or other disability.” (Application Opposition at 21.) In response, Plaintiffs assert that they do not need to show intentional discrimination, the law only requires that they demonstrate that Defendants likely failed to provide reasonable accommodation. (Application Reply at 9.) Indeed, the Ninth Circuit has held a defendant’s failure to provide reasonable accommodations is “sufficient to demonstrate discrimination ‘by reason of’ disability.” McGary v. City of Portland, 386 F.3d 1259, 1265‐66 (9th Cir. 2004). 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.
2. Likelihood of Irreparable Harm
A plaintiff must demonstrate she is likely to suffer irreparable harm in the absence of a preliminary injunction. See Winter, 555 U.S. at 20. The Ninth Circuit cautions that “[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean Marine Servs. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). A plaintiff seeking injunctive relief must demonstrate that “remedies available at law, such as monetary damages, are inadequate to compensate” for the injury. Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., 736 F.3d 1239, 1249 (9th Cir. 2013). “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Plaintiffs have established a likelihood of irreparable harm. There are at least 369 cases of COVID‐19 in the Jail. Without additional measures to abate the spread, more inmates will contract the disease. Undoubtedly some will die. Certainly, there is no greater irreparable harm than death. Helling v. McKinney, 509 U.S. 25, 33 (1993) (holding that the Constitution protects those in detention against “a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” ); see also

2020) (multiple community organizations); Letter from Tom Dominguez, Ass’n of Orange County Deputy Sheriffs, to Sheriff Don Barnes (Mar. 25, 2020) (deputies); Letter from Transforming Justice Orange County, et al., to Sheriff Don Barnes, et al., Re: COVID‐19 in Orange County Jails (Apr. 6, 2020) (multiple community organizations)

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Unknown Parties v. Johnson, 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), (finding evidence of “medical risks associated with . . . being exposed to communicable diseases” adequate to establish irreparable harm).

3. Balance of the Equities and Public Interest

Where the government is the opposing party, balancing of the harm and the public interest merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Thus, the Court asks whether any significant “public consequences” would result from issuing the preliminary injunction. Winter, 555 U.S. at 24.

Plaintiffs request extensive and explicit injunctive relief, which falls broadly into two categories. First, seek an order requiring Defendants to “[r]elease [members of the Medically‐ Vulnerable and Disability Subclasses] within twenty‐four hours.” (Complaint at 61.) Second, they seek several remedial measures aimed at reducing the risk at the Jail, including an order requiring Defendants to “[i]mmediately adopt mitigation efforts to protect all Class Members not immediately released.” (Complaint at 61–64.) Because the public consequences of the two categories of injunctions are different, the Court will assess them separately.

i. Mandating Compliance with CDC Guidelines

The balance of equities and public interest tilt heavily Plaintiffs’ favor when contemplating compliance with the CDC Guidelines. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (quotation omitted). Moreover, there can be no public interest in exposing vulnerable persons to increased risks of severe illness and death. “Faced with . . . preventable human suffering, [the Ninth Circuit] ha[s] little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)).

Defendants argue that the balance of equities tilts in their favor because their “weighty interests are those of the general public in the orderly administration of the jails and in maintaining public safety.” (Application Opposition at 22.) This argument fails for two reasons. First, it inappropriately relies on a decision in which the Fifth Circuit found that enjoining a prison from following state law represented irreparable injury to the prison. See Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020) (“The district court’s injunction prevents the State from effectuating the Legislature’s choice and hence imposes irreparable injury.”) Here, Plaintiffs do not attempt to enjoin Defendants from following state law but to comply with guidelines issued by a federal agency. Second, compliance with CDC guidelines promotes the orderly administration of jails—an inmate population with a skyrocketing rate of infection is far from orderly. Accordingly, mandating compliance with the CDC Guidelines in the Jail serves the public interest.

//
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ii. Release of Medically Vulnerable and Disabled Subclasses
Plaintiffs, however, have not met their burden to prove that the balance of equities tilts in favor of releasing all medically vulnerable and disabled inmates. There are myriad risks of releasing incarcerated individuals without any consideration of crime committed, propensity to violence, or flight risk. Concerns that released inmates would commit crimes is far from “speculative”—many of the individuals in the proposed class have committed or are charged with violent crimes. Moreover, some pre‐trail inmates may pose a flight risk. Such a haphazard release of inmates could present a threat to public safety. Because it is plausible that the Jail could mitigate many of the risks presented by COVID‐19 with better compliance with the CDC Guidelines, Plaintiffs have not met their burden to demonstrate that the need for release outweighs the risks of releasing of 488 inmates without individualized assessments.18
V. CONCLUSION
The Court GRANTS Plaintiffs’ Motion. The Court further GRANTS‐IN‐PART and DENIES‐ IN‐PART Plaintiffs’ Application as follows:
 Defendants shall provide adequate spacing of six feet or more between incarcerated people so that social distancing can be accomplished in accordance with CDC guidelines;
 Defendants shall effectively communicate to all incarcerated people, including low literacy and non‐English‐speaking people, sufficient information about COVID‐19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
 Defendants shall ensure that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for cleaning such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID‐19 for daily cleanings;
 Defendants shall ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;
 Defendants shall provide access to daily showers and daily access to clean laundry, including clean personal towels and washrags after each shower;

18 Because the Court denies Plaintiffs’ request to release the Medically‐Vulnerable class, it need not decide several issues raised in the Application Opposition, including whether Plaintiffs are entitled to pursue section 2241 habeas relief.

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 Defendants shall require that all Jail staff wear personal protective equipment, including CDC‐recommended surgical masks, when interacting with any person or when touching surfaces in cells or common areas;
 Defendants shall require that all Jail staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas;
 Defendants shall take the temperature of all class members, Jail staff, and visitors daily (with a functioning and properly operated and sanitized thermometer) to identify potential COVID‐19 infections;
 Defendants shall assess (through questioning) each incarcerated person daily to identify potential COVID‐19 infections.
 Defendants shall conduct immediate testing for anyone (class members, Jail staff and visitors) displaying known symptoms of COVID‐19;
 Defendants shall ensure that individuals identified as having COVID‐19 or having been exposed to COVID‐19 receive adequate medical care and are properly quarantined (without resorting to cohorting, if possible), in a nonpunitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video visitation with loved ones, communications with counsel, and personal property;
 Defendants shall respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
 Defendants shall provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high‐touch areas or items (including, but not limited to, phones and headphones) between each use;
 Defendants shall waive all medical co‐pays for those experiencing COVID‐19‐related symptoms.
All other requests for relief in the Application are DENIED.
IT IS SO ORDERED.

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 Case 8:20-cv-00835-JGB-SHK Document 72 Filed 06/02/20 Page 1 of 2 Page ID #:1481

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. SACV 20-835 JGB (SHKx)
Title Melissa Ahlman, et al. v. Don Barnes, et al.

Date June 2, 2020

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings: Order DENYING Defendants’ Ex Parte Application to Stay Case (IN CHAMBERS)
Before the Court is an Ex Parte Application to Stay All Proceedings Pending Appeal to the Ninth Circuit filed by Defendants Don Barnes and Orange County on May 27, 2020. (“Application,” Dkt. No. 66.) Plaintiffs opposed the Application on May 28, 2020. (“Opposition,” Dkt. No. 70.) After considering the papers filed in support of and in opposition to the Application, the Court DENIES the Application.

On May 26, 2020, the Court issued an injunction compelling Defendants to implement several practices within the Orange County Jails to quell the spread of COVID-19. (“PI Order,” Dkt. No. 65.) Defendants now ask the Court to stay the case, along with the relief ordered in the PI Order, while they appeal the PI Order to the Ninth Circuit. (See Application.)

When deciding to issue a stay pending appeal pursuant to Federal Rule of Civil Procedure 62, courts consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Sierra Club v. Trump, 929 F.3d 670, 687 (9th Cir. 2019) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). Defendants have not met their burden on any of these factors.

First, while Defendants have identified issues that they intend to raise on appeal, they have not demonstrated that they are likely to succeed on these issues. Indeed, the Court already considered—and rejected—many of the arguments Defendants raise. (See generally PI Order.) Defendants rely heavily on the Ninth Circuit’s partial staying of an order of similar protocols in

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Immigration and Customs Enforcement’s Adelanto Detention Center to the extent those protocols exceeded Centers for Disease Control (“CDC”) Guidelines. See Kelvin Hernandez Roman v. Chad F. Wolf, 5:20-cv-00768-TJH. The analogy between Roman and this case is a poor one: there have been only two confirmed COVID-19 cases at Adelanto Detention Center; as of May 29, 2020, there have been 377 confirmed cases in the Orange County Jails.1 See Kelvin Hernandez Roman v. Chad F. Wolf, 5:20-cv-00768-TJH, Dkt. No. 95 (C.D. Cal. June 1, 2020) (informing Court of second confirmed COVID-19 case). As the Court previously explained, the CDC Guidelines are just that—guidelines. While a detention center with only two confirmed cases need not exceed those guidelines, more must be done when there are nearly four hundred confirmed cases in a facility. Moreover, the Ninth Circuit did not stay the portion of the order that mandated that the detention center comply with the Centers for Disease Control (“CDC”) Guidelines. Id. at Dkt. No. 73.
Second, Defendants submit no evidence of irreparable injury. Indeed, in a declaration submitted in opposition to Plaintiffs’ Motion for Preliminary Injunction, Orange County Sherriff Department Officer Balicki claimed that “OCSD has, at a minimum already implemented all of the mitigation efforts outlined in plaintiffs’ request for relief.” (Dkt. No. 44-10 ¶ 2 (emphasis added).) The PI Order did not order Defendants to implement anything beyond what was requested in Plaintiffs’ complaint. Defendants cannot claim to have already implemented the requested mitigation efforts and also claim that the implementation will cause irreparable injury.
Third, as this Court already concluded, without these measures, individuals incarcerated at the Orange County Jail are likely to be irreparably injured. (See PI Order at 18-19.) And fourth, there is a public interest in preventing the spread of a potentially deadly disease among inmates. (See id. at 19.)
For the foregoing reasons, the Application is DENIED.
IT IS SO ORDERED.

1 https://www.ocsd.org/documents/sheriff/COVIDStats5.29.20.pdf

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 Case 8:20-cv-00835-JGB-SHK Document 93 Filed 06/26/20 Page 1 of 3 Page ID #:2162

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. SACV 20-00835 JGB (SHKx)
Title Melissa Ahlman, et al. v. Don Barnes, et al.

Date June 26, 2020

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings:

Order (1) DENYING Defendants’ Ex Parte Application to Dissolve Injunction (Dkt. No. 86); (2) GRANTING Plaintiffs’ Motion for Expedited Discovery (Dkt. No. 83); (3) DENYING Plaintiff’s Ex Parte Application to Shorten Time (Dkt. No. 89); and (4) VACATING the July 20, 2020 Hearing (IN CHAMBERS)

Before the Court is (1) an Ex Parte Application to Immediately Dissolve Preliminary Injunction file by Defendants Don Barnes and Orange County; (2) a Motion for Expedited Discovery filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, and Don Wagner. (“Application,” Dkt. No. 86; “Motion,” Dkt. No. 83.) The Court finds these matters appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of and in opposition to the Motion, the Court DENIES the Application and GRANTS the Motion.1 The Court VACATES the hearing set for July 20, 2020 on the Motion.

I. BACKGROUND

On May 26, 2020, the Court issued an injunction compelling Defendants to implement several practices within the Orange County Jails to quell the spread of COVID-19. (“PI Order,” Dkt. No. 65.) Defendants then requested that both this Court and the Ninth Circuit stay the injunction. (Dkt. Nos. 66, 68.) Those requests were denied. (Dkt. Nos. 72, 75, 80.)

1 Plaintiffs’ ex parte application to shorten the time for the Motion hearing is DENIED AS MOOT. (See Dkt. No. 89.)

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On June 18, 2020, Plaintiff filed a motion requesting expedited discovery. (Motion.) Defendants filed an ex parte application requesting that the Court immediately dissolve the preliminary injunction on June 19, 2020. (Application.)
II. DISCUSSION
After finding that Defendants’ response to the COVID-19 outbreak in Orange County Jail was inadequate, the Court ordered Defendants to implement several remedial measures aimed at stopping the spread of the disease. (See PI Order.) Now, Defendants seek to dissolve that injunction, arguing that it is no longer necessary. The request is premature.
Dissolution of a preliminary injunction is only proper only if there has been a significant change that renders the original preliminary injunction inequitable. Alto v. Black, 738 F3d 1111, 1120 (9th Cir. 2013). Defendants insist that the rate of infection is now zero. (Application at 5.) However, they support this assertion with their own evidence and testimony from County employees. Certainly, the County employees are incentivized to submit evidence that will support the County’s position.
Before the Court can conclude that the circumstances have truly changed in such a way to warrant dissolution of the injunction, Plaintiffs must have the opportunity to evaluate Defendants’ evidence and determine whether other evidence contradicts it. Because it would serve both parties’ interests to quickly determine the actual state of the outbreak, there is good cause for ordering expedited discovery. See Fed. R. Civ. Pro. 26(d)(1); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (“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.”)
Moreover, even though Defendants now insist that there is zero transmission within the Jail, they acknowledge that there are still six active cases. (Application at 5.) As Defendants have previously demonstrated, six cases can rapidly become three hundred in the absence of sufficient mitigating measures. The country remains deep in the throes of the outbreak—tens of thousands of new cases are still being reported every day.2 Even if Defendants have dropped the transmission rate to zero, it is certainly not time yet to draw down preventative measures— unless Defendants consistently implement those steps outlined in the injunctive order, a second spike is likely occur.
Defendants have repeatedly insisted that they are going above and beyond what is necessary to stop the spread of infection—including implementing all the measures that the court ordered with the injunction. (See, e.g., Dkt. No. 44-10 ¶ 2 (“OCSD has, at a minimum already implemented all of the mitigation efforts outlined in plaintiffs’ request for relief.”).) Yet they have filed four separate requests asking to be relieved of the obligation to do what they have long

2 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

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claimed to be doing. And they refuse to provide Plaintiffs with any information regarding their compliance with the Court’s order. (Application, Exhibit A.)
III. CONCLUSION
For the reasons above, the Court:
1. DENIES Defendants’ Application;
2. GRANTS Plaintiffs’ Motion;
3. ORDERS that by July 8, 2020, (1) Defendants will serve responses to all outstanding written discovery, (2) the parties will agree on a date for inspection of the Jail to be no later than July 15, 2020, and (3) the parties will agree on a time and date for the video depositions of Erin Winger, Dr. C. Hsien Chiang, and Commander Joseph Balicki to be no later than July 15, 2020;
4. ORDERS the parties to meet and confer regarding additional discovery;
5. ORDERS Defendants to submit weekly updates to Plaintiffs regarding compliance with the injunction so long as the injunction remains in effect;
6. ADMONISHES both parties to fully comply with the entirety of this Order and all other orders applicable to this case—failure to do so will result in sanctions;
7. VACATES the hearing set for July 20, 2020 on the Motion.
8. DENIES as moot Plaintiffs’ ex parte application to shorten the time for the Motion hearing (See Dkt. No. 89.).
IT IS SO ORDERED.

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 Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 1 of 73 Page ID #:1553

1 MITCHELL KAMIN (SBN 202788) 2 mkamin@cov.com
AARON LEWIS (SBN 284244) 3 alewis@cov.com 4 BRITTANY BENJAMIN (SBN 323968)
bbenjamin@cov.com 5 COVINGTON & BURLING LLP 6 1999 Avenue of the Stars
Los Angeles, CA 90067-4643 7 Telephone: (424) 332-4800 8 Facsimile: (424) 332-4749

9 CASSANDRA STUBBS (SBN 218849)

10 cstubbs@aclu.org

11

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

12 201 W. Main St., Suite 402

13

Durham, NC 27701 Telephone: (919) 682-5659

14 Facsimile: (919) 682-5961

15 Attorneys for Plaintiffs

16

17 [Additional Counsel continued on next page]

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

SOUTHERN DIVISION

21

22 MELISSA AHLMAN, DANIEL KAUWE,

23

MICHAEL SEIF, JAVIER ESPARZA, PEDRO BONILLA, CYNTHIA

24 CAMPBELL, MONIQUE CASTILLO,

25

MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of

26 themselves and all others similarly situated,

27

Plaintiffs,

28

Case No.: 08:20-cv-00835
CLASS ACTION
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 2 of 73 Page ID #:1554

1

2

v.

3 DON BARNES, in his official capacity as 4 Sheriff of Orange County, California; and
ORANGE COUNTY 5

6

Defendant.

7 [Additional Counsel continued from first 8 page]

9 STACEY GRIGSBY

10 sgrigsby@cov.com

11

AMIA TRIGG (SBN 282890) atrigg@cov.com

12 COVINGTON & BURLING LLP

13

One CityCenter 850 Tenth Street NW

14 Washington, DC 20001

15

Telephone: (202) 662-6000 Facsimile: (202) 778-5906

16

17

OLIVIA ENSIGN oensign@aclu.org

18 CRISTINA BECKER

19

cbecker@aclu.org AMERICAN CIVIL LIBERTIES UNION

20 FOUNDATION

21

201 W. Main St., Suite 402 Durham, NC 27701

22 Telephone: (919) 682-5659

23 Facsimile: (919) 682-5961

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

ii

IMMEDIATE RELIEF SOUGHT
JOHN WASHINGTON (SBN 315991) jwashington@sshhlaw.com SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 Telephone: (310) 399-7040 Facsimile: (310) 399-7040
PETER ELIASBERG (SBN 189110) peliasberg@aclu.org AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St Los Angeles, CA 90017 Telephone: (213) 977-9500
PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000 Irvine, CA 92687 Telephone: (949) 824-0066

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 3 of 73 Page ID #:1555

1 CARL TAKEI 2 ctakei@aclu.org
SOMIL TRIVEDI 3 strivedi@aclu.org 4 CLARA SPERA
cspera@aclu.org 5 AMERICAN CIVIL LIBERTIES UNION 6 FOUNDATION
125 Broad Street, 18th Floor 7 New York, NY 10004 8 Telephone: (212) 607-3300
Facsimile: (212) 607-3318 9 10
ATTORNEYS FOR PLAINTIFFS 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

iii

ZOE BRENNAN-KROHN (SBN 324912) zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415)-343-0769 Facsimile: (415) 255-1478

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 4 of 73 Page ID #:1556

1

2

I. INTRODUCTION

3

1. Plaintiffs, who are all confined in the Orange County Jail, bring this action

4 because the conditions of their incarceration have put them all at imminent risk of serious

5 illness and death from COVID-19.

6

2. We are in the midst of the most dangerous pandemic in generations.1 The

7 effects of the COVID-19 pandemic have rippled through local communities across the

8 country, including Orange County. While COVID-19 has spread through the community,

9 jails, such as the Orange County Jail, have become hotbeds for COVID-19 cases,

10 threatening the lives of people inside the jail and the broader community.2 As of June 5,

11 2020, 381 people in the Orange County Jail have tested positive for COVID-19.3 This

12 number will continue to rise unchecked absent urgent intervention.

13

14

15

16

17 1 John M. Barry, The Single Most Important Lesson from the 1918 Influenza, New York

18

Times (March 17, 2020), https://cutt.ly/PtQ5uAZ (Opinion piece by author of “The Great Influenza: The Story of the Deadliest Pandemic in History,” noting comparison between

19 current COVID-19 outbreak and the 1918 influenza outbreak widely considered one of the

20 worst pandemics in history).

21

2 The Orange County Jail has this in common with jails all over the country. From a public health perspective, jails are particularly dangerous environments. The rate of infection in

22 the Cook County Jail in Chicago “is higher than most anywhere else in the country.”

23

Cheryl Corley, The COVID-19 Struggle in Chicago’s Cook County Jail, NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833440047/the-covid-19-struggle-in-chicagos-

24 cook-county-jail. One of the largest outbreaks in the United States is in the Ohio prison

25

system. Virus outbreak in Ohio prisons highlights risk at US lockups, Boston Herald, April 21, 2020 (last visited April 21, 2020), https://www.bostonherald.com/2020/04/21/virus-

26 outbreak-in-ohio-prisons-highlights-risk-at-us-lockups/.

27 3 COVID-19 in OC Jails, https://www.ocsd.org/documents/sheriff/COVIDStats6.5.20.pdf

28

1

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1

3. COVID-19 is a novel communicable virus that has proved unusually fatal.4

2 Many have been sickened, and many have died. Those with certain underlying conditions

3 are at increased risk of COVID-19-related complications and death.

4

4. There is no vaccine or cure for COVID-19.5 Public health experts have

5 issued detailed recommendations to prevent the spread of COVID-19 and to save lives.

6 These recommendations include: maintaining social distancing of at least six feet; wearing

7 masks when venturing out to complete essential tasks; cleaning and disinfecting communal

8 surfaces regularly; and proper handwashing.6 Many, if not all, of these precautions are

9 impossible in the Orange County Jail facilities at the current population levels. The Orange

10 County Jail sees regular turnover of detainees, and staff come and go from the jail and into

11 the community daily. People incarcerated in the Orange County Jail cannot isolate and

12

13

14

15

16

17 4 As of June 9, over 1,938,000 people in the United States have contracted COVID-19 and

18

more than 110,000 people have died. Centers for Disease Control and Prevention, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

19 See also Michael Rothfeld et al., The Heartbreaking Last Texts of a Hospital Worker on

20

the Front Lines, NY Times (Apr. 15, 2020) (describing the final texts from a hospital worker who died after contracting coronavirus to her daughter, “Love you[.] Mom be

21 back[.]”). See also Exhibit A, Declaration of Don Wagner ¶ 21 (“I am 68 years old and I

22 don’t want to get a life sentence by catching the virus and dying.”). *Counsel have been unable to secure wet signatures for certain declarations, and were instructed by the clerk’s
23 office to include a declaration to this effect. See Exhibit B, Declaration of Brittany

24 Benjamin.

25

5World Health Organization, Coronavirus, https://cutt.ly/ztWyf7e (“At this time, there are no specific vaccines or treatments for COVID-19.”).

26 6 Center for Disease Control, How Coronavirus Spreads, https://cutt.ly/CtYRkkC (“The

27 virus that causes COVID-19 is spreading very easily and sustainably between people.”).

28

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1 have no ability to maintain safe social distance.7 Efforts to regularly disinfect common

2 surfaces and maintain personal hygiene are difficult and inadequate.8

3

5. The steps Sheriff Barnes has taken to date are manifestly inadequate in the

4 face of the ongoing outbreak of COVID-19 inside the jail. At the current population levels,

5 people detained in the Orange County jail are unable to socially distance themselves from

6 others. While the jail staff provide some cleaning supplies, “[t]here are never enough

7 supplies to clean throughout the day.”9 The masks given to detained people are “cheap and

8 made of paper, and rip easily.”10 Jail staff do not always wear protective equipment, like

9 gloves and masks, and detainees have not been given gloves at all.

10

6. Compounding the problem, people continue to be booked into the jail for

11 low-level offenses that pose little or no public safety risk: public intoxication, simple drug

12 possession, and motor vehicle offenses such as driving with one’s lights off.11 These

13 bookings, as well as the transportation of these defendants to court in close proximity to

14 deputies, create unnecessary exposure risks for everyone involved.12

15

7. Perhaps most dangerously of all, the Orange County Jail has identified, but

16 not released, over 500 detainees who are medically vulnerable and at heightened risk of

17 serious infection and death. Defendants have arbitrarily decided only to proceed with the

18 release of a small sub-group of the medically-vulnerable people detained.

19

20

21

7 Exhibit C, April 22, 2020 Declaration of Melissa Ahlman ¶ 24 (“All of the woman [sic] in the medical tank share two toilets. Sometimes we have to wait in line for these. If we

22 have to wait in line we can not [sic] space out six feet apart.”); Exhibit D, Declaration of

23 Enrique Hernandez ¶ 7-8.

24

8 Exhibit E, Declaration of Praney Saem ¶ 19 (“The jail is not giving us enough hygiene or cleaning products.”).

25 9 Exhibit F, April 22, 2020 Declaration of Monique Castillo ¶ 19.

26 10 Exhibit D, Hernandez Decl. ¶ 17.

27 11 Exhibit G, Declaration of William Webster ¶ 7.

28 12 Id. at ¶ 8.

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1

8. To prevent further infections and unnecessary fatalities, the Orange County

2 Jail must align its operations with public health principles by immediately releasing the

3 medically-vulnerable population and then releasing others in sufficient numbers so that the

4 jail can adhere to the medically-recommended quarantining, testing, distancing, hygiene,

5 and treatment protocols. Public health expertise tells us that aggressive measures,

6 including reducing the jail population, are our last and best chance to slow the growth of

7 new infections in the jail and in the surrounding community.

8

9. Preventing the Orange County Jail outbreak from getting worse will have

9 clear benefits not only for the people inside the jail, but also for the community at large.

10 Jails are not closed off from the communities around them; every day, custody, medical,

11 and support staff and contractors who have direct contact with detainees enter and leave

12 the facility, along with detainees who are newly booked into the jail, leave and return for

13 court hearings, and leave upon release.13 For this reason, an outbreak in the jail can spread

14 easily to the surrounding community, often through jail staff who become infected and

15 bring the virus home.14 Additionally, when an incarcerated patient’s needs are too acute

16 for the jail to provide adequate treatment, the patient must be transported to and treated at

17 a community hospital.15 Thus, a continued outbreak of COVID-19 cases in the Orange

18 County Jail will not only directly harm people infected by the jail outbreak, but will also

19 divert finite medical resources from the general Orange County community, leading to

20 further county-wide public health harms.16 The hospital resources in the Orange County

21

22 13 Exhibit H-A, Declaration of Joe Goldenson, M.D. ¶ 33.

23 14 Id. ¶ 34.

24 15 Id. ¶ 25.

25

16 Exhibit I, Declaration of Daniel Parker, Ph.D. ¶¶ 28-30. See also Elizabeth Cohen et al., New York surgeon writes haunting letter about rationing care for patients who don’t have

26 the

coronavirus,

CNN

(Apr.

5,

2020,

2:22

PM),

27

https://www.cnn.com/2020/04/05/health/rationing-care-patients-withoutcoronavirus/index.html (“We have had to make decisions that I personally have never had

28

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1 community are limited and are not equipped to handle increased upticks in the quantity of

2 people who need treatment for COVID-19 infection.17 Given the existing number of

3 specialized beds and ventilators available in the County, a surge in the need for specialized

4 beds could result in a humanitarian disaster.18 Many deaths have occurred in places where

5 epidemics have outpaced hospital capacity.19 The Court can and must take action to

6 prevent these deaths.

7

10. Accordingly, Plaintiffs bring this action on behalf of themselves and all those

8 similarly situated. Plaintiffs seek to represent a class of all current and future people

9 incarcerated in the Orange County Jail, and seek to represent four subclasses. These

10 subclasses include: two “Medically-Vulnerable” Subclasses (one pre-trial and one post-

11 conviction), including all people detained at the Jail who, because of age, pregnancy, and/or

12 underlying medical conditions, are particularly vulnerable to death or serious illness if they

13 contract COVID-19; and two “Disability” Subclasses (one pre-trial and one post-

14 conviction), including all people in the Medically-Vulnerable Subclasses who are

15 vulnerable because of conditions that are protected under federal disability rights laws.

16 Plaintiffs seek all necessary steps to safeguard the health of those remaining in the Orange

17 County Jail, including further population reductions that would permit the jail to

18 successfully implement the public health measures needed to prevent a massive outbreak

19

20

21 to contemplate before. . . . We have had to ration care and make decisions about who is
22 considered an urgent or emergent case.”); Joanne Kenen, Local officials alarmed by dearth 23 of ventilators, hospital beds, (Mar. 14, 2020, 7:00 a.m.), https://cutt.ly/stYTDDk (“[T]here
are worrisome limitations on critical care beds and the number of health care workers to 24 staff them, public health officials said.”). 25 17 Exhibit I, Parker Decl. ¶ 28.
26 18 Id. ¶ 29.
27 19 Id. ¶ 26.

28

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1 inside—one that will inevitably spread to the surrounding communities. Given the

2 exponential spread of this highly contagious virus, time is of the essence.20

3

II. JURISDICTION AND VENUE

4

11. Plaintiffs bring this putative class action pursuant to 42 U.S.C. § 1983 for

5 relief from both detention and conditions of confinement that violate their Eighth and

6 Fourteenth Amendment rights under the U.S. Constitution and pursuant to 42 U.S.C.

7 § 12131 et seq. and 29 U.S.C. § 794 for relief from disability discrimination.

8

12. This Court has subject matter jurisdiction over these claims pursuant to 42

9 U.S.C. § 1983, and 28 U.S.C. § 1331 (federal question jurisdiction).

10

13. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part

11 of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.

12

III. PARTIES

13

14. Plaintiff Melissa Ahlman is a 32-year-old woman who is currently being held

14 pre-trial at the Central Women’s Jail. She has been in OCSD custody since February 19,

15 2020. Ms. Ahlman is a nursing mother and has to pump milk for her seven-month-old

16 baby. She is housed in a “medical tank” with six medically-vulnerable women who have

17 diabetes, autoimmune diseases, and other women who are nursing. At least three of the

18 other women who Ms. Ahlman has been housed with have developed COVID-19 since the

19 original complaint was filed in this case. Ms. Ahlman must travel to the medical unit to

20 drop her milk off multiple times a day, exposing her to a significant amount of traffic and

21 people waiting for medical attention. She comes in close contact with nurses and other

22 incarcerated people who are at the medical unit because they feel ill, including people with

23 COVID-19-like symptoms such as fevers and coughs. The other incarcerated people with

24

25 20 COVID-19 Dashboard by the Center for Systems Science and Engineering at Johns

26 Hopkins University, Coronavirus Resource Center, available at

27

https://coronavirus.jhu.edu/map.html; see also Brittany Shammas et al., Trump says quarantine for New York area ‘Will not be Necessary’; U.S. coronavirus-related deaths

28 double in two days, Washington Post (Mar. 28, 2020, 11:27 p.m.), https://cutt.ly/ktRo8u0.

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1 whom Ms. Ahlman is housed similarly make regular trips between their shared housing

2 unit and the medical facility. Ms. Ahlman has been denied the ability to maintain social

3 distancing and has not been provided with sufficient Personal Protective Equipment

4 (“PPE”), hygiene, or cleaning supplies.

5

15. Plaintiff Daniel Kauwe is a 42-year-old man who is currently being held in

6 the Theo Lacy Facility. He has been in OCSD custody since September 25, 2019. He is

7 in pre-trial custody and is awaiting a hearing in June. Mr. Kauwe is medically vulnerable.

8 He is immunocompromised and prone to infection, and is currently housed in a medical

9 unit. While in custody, he has been unable to consistently practice social distancing and

10 has not been provided with adequate cleaning supplies or PPE. Mr. Kauwe is an individual

11 with a disability for purposes of the ADA and the Rehabilitation Act.

12

16. Plaintiff Michael Seif is a 35-year-old man who was held in the Central Men’s

13 Jail between December 5, 2019 and released on June 2, 2020. He was in pre-trial custody

14 at the time of the original complaint, and had numerous court hearings rescheduled. On

15 May 22, 2020 he pled guilty and was sentenced. He was released on June 2, 2020,

16 following his sentencing. Mr. Seif is medically vulnerable; he had a heart attack and

17 suffered a collapsed lung shortly before his incarceration and he did not have adequate

18 follow-up care. While in custody, he was unable to consistently practice social distancing

19 and was not been provided with adequate cleaning supplies or PPE. Mr. Seif is an

20 individual with a disability for purposes of the ADA and the Rehabilitation Act.

21

17. Plaintiff Javier Esparza is a 35-year-old man who is currently being held in

22 the Theo Lacy Facility. He has been in OCSD custody since February 25, 2019. While in

23 custody, Mr. Esparza has been repeatedly placed in close contact with others. He has also

24 been moved into new housing during the pandemic, increasing the risk of spreading the

25 virus throughout the facility. He is unable to consistently practice social distancing and

26 has not been provided with adequate cleaning supplies or PPE.

27

18. Plaintiff Pedro Bonilla is a 36-year-old man who is currently being held in

28 the Theo Lacy Facility. He has been in OCSD custody since August 12, 2018 and his

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1 expected release date is August 5, 2020. While in custody, Mr. Bonilla has been repeatedly

2 placed in close contact with others, including individuals who have been exposed to

3 COVID-19. He is unable to consistently practice social distancing and has not been

4 provided with adequate cleaning supplies or PPE. Mr. Bonilla contracted Hepatitis C

5 during a previous period of incarceration. Mr. Bonilla is an individual with a disability for

6 purposes of the ADA and the Rehabilitation Act.

7

19. Plaintiff Cynthia Campbell is a 64-year-old woman who is currently being

8 held at the Central Women’s Jail. She has been in the custody of the OCSD since October

9 15, 2019. Ms. Campbell has—and receives immunosuppressants for—rheumatoid arthritis

10 which makes her medically vulnerable. She was housed in a designated medical unit until

11 May 13, 2020, when she tested positive for COVID-19. In spite of her vulnerable

12 condition, she has not received prompt medical attention while in custody. Other

13 individuals with whom Ms. Campbell was housed made regular trips between their shared

14 housing and the medical facility in order to receive routine treatments. During these trips,

15 these women were exposed to large numbers of (often sick) individuals. Ms. Campbell

16 similarly had to travel between her unit and the medical office on multiple occasions, and

17 was in close contact with others while doing so. In her housing unit, Ms. Campbell was

18 been denied the ability to maintain social distancing or proper hygiene. She was tested for

19 COVID-19 on May 13, 2020 and removed from contact with other highly-vulnerable

20 individuals. Ms. Campbell is an individual with a disability for purposes of the ADA and

21 the Rehabilitation Act.

22

20. Plaintiff Monique Castillo is a 43-year-old woman who is currently being

23 held at the Central Women’s Jail. She has been in OCSD custody since December 19,

24 2019. Ms. Castillo is medically vulnerable. She has—and is medicated for—Type 1

25 diabetes and anxiety. As a result of her medical needs, she is housed in a “medical tank”

26 with six other medically-vulnerable women. In order to receive insulin, she is brought to

27 the medical office four times per day, each time finding herself in close contact with

28 incarcerated people from other parts of the jail, many of whom are ill and show symptoms

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1 consistent with COVID-19. Other incarcerated people with whom Ms. Castillo is housed

2 similarly make regular trips between their shared housing and the medical facility. Ms.

3 Castillo has been denied the ability to maintain social distancing or proper hygiene. Ms.

4 Castillo is an individual with a disability for purposes of the ADA and the Rehabilitation

5 Act.

6

21. Plaintiff Mark Trace is a 53-year-old man who is currently being held in the

7 Central Men’s Jail. He has been in OCSD custody for approximately six months and is set

8 to be released on June 23, 2020. Before being transferred to his current housing, he was

9 held at the Theo Lacy Facility. Mr. Trace is medically vulnerable. He has multiple,

10 significant underlying health conditions. These include sclerosis of the liver, Hepatitis C

11 and D, asthma, tuberculosis, valley fever, and seizures. Several people in adjacent housing

12 units have contracted COVID-19, but despite Mr. Trace’s symptoms and vulnerability, he

13 has been denied a test. He is housed with approximately 12 other individuals in his module

14 and is unable to consistently practice social distancing. He has also not been provided with

15 adequate cleaning supplies or PPE. Since the COVID-19 outbreak, Mr. Trace’s access to

16 medical care has slowed. He missed his medication on March 20 and April 13, and went

17 several days without an inhaler. Mr. Trace is an individual with a disability for purposes

18 of the ADA and the Rehabilitation Act.

19

22. Plaintiff Cecibel Caridad Ortiz is a 31-year-old woman who is currently being

20 held at the Central Women’s Jail. She has been in the custody of the OCSD since October

21 30, 2018. Ms. Caridad Ortiz is medically vulnerable and was housed in a designated

22 medical module until May 11, 2020, when she was removed and tested for COVID-19.

23 She has—and receives medical treatment for—Type 1 diabetes and anxiety. In order to

24 receive a diabetic check, she is brought to the medical office three times per day, each time

25 finding herself in close contact with people who are housed in other parts of the jail, many

26 of whom are ill. Other individuals with whom Ms. Caridad Ortiz is housed similarly make

27 regular trips between their shared housing and the medical facility. Ms. Caridad Ortiz has

28 been denied the ability to maintain social distancing or proper hygiene. Despite her

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1 repeated exposure to potentially contagious individuals she was not tested for COVID-19

2 or removed from the congregate setting until May 11, 2020, hours after she first reported

3 symptoms. Ms. Caridad Ortiz is an individual with a disability for purposes of the ADA

4 and the Rehabilitation Act.

5

23. Plaintiff Don Wagner is a 68-year-old man who is currently being held at the

6 Theo Lacy facility. He has been in OCSD custody since the first week of March 2020. He

7 was transported to Theo Lacy from a federal facility in San Diego on a bus that held 30 to

8 40 people sitting in close proximity. He is uncertain when his next court appearance will

9 be held. Mr. Wagner is medically vulnerable. He is a cancer survivor and his blood

10 pressure and thyroid levels are monitored by the jail’s nurses. In order to receive this

11 monitoring, Mr. Wagner must go to the nurse’s station, where he sometimes waits in line

12 with incarcerated people from across the jail. The nurses told Mr. Wagner that he needs to

13 see a medical specialist outside of the jail due to his thyroid levels and his blood pressure,

14 but Mr. Wagner is uncertain when he will be able to be seen by such a specialist.

15 Mr. Wagner has also been in close proximity with people who he suspects may have been

16 in contact with COVID-19—with no option to distance himself. Mr. Wagner has also been

17 denied the means to keep himself and his surroundings clean. He receives only a small bar

18 of soap per week and, because he is indigent he cannot buy more. He uses the only towel

19 he receives to clean both himself, and his cell. Mr. Wagner’s age and his medical

20 conditions make him particularly vulnerable to COVID-19, and he fears for his safety and

21 well-being. Mr. Wagner is an individual with a disability for purposes of the ADA and the

22 Rehabilitation Act.

23

24. The Orange County Sheriff, Don Barnes (“Sheriff Barnes”), is an Orange

24 County Official, and the elected head of OCSD. Sheriff Barnes currently has immediate

25 custody over Plaintiffs and all other putative class members as the administrator of the

26 Orange County Jail. Sheriff Barnes is a final policymaker for running and administering

27 the jail in Orange County. Sheriff Barnes is sued in his official capacity.

28

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1

25. Orange County (“Orange County”) is a municipal corporation organized

2 under the laws of the State of California. Orange County controls and operates the Orange

3 County Jail, through Sheriff Barnes. Orange County currently has immediate custody over

4 Plaintiffs and all other putative class members. Orange County is a public entity for the

5 purposes of the ADA. Orange County is a recipient of federal financial assistance for the

6 purposes of the Rehabilitation Act. Among others, Sheriff Barnes is a final policymaker

7 for Orange County.

8

IV. FACTUAL ALLEGATIONS

9

A. COVID-19 Poses a Significant Risk of Illness, Injury, or Death.

10

26. The novel coronavirus that causes COVID-19 has led to a global pandemic.21

11 As of June 6, 2020, there were more than 6,663,000 reported COVID-19 cases throughout

12 the world22 and more than 108,000 deaths in the United States.23 Projections indicate that

13 as many as 240,000 people in the U.S. will die from COVID-19, accounting for existing

14 interventions.24

15

27. The virus is known to spread from person to person through respiratory

16 droplets, close personal contact, and contact with contaminated surfaces and objects.25

17

18

19

21 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC.

20 22 World Health Organization, Coronavirus disease 2019 (COVID-19) Situation Report –

21 138, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200606covid-19-sitrep-138.pdf?sfvrsn=c8abfb17_4
22 23 Cases in the U.S., supra note 4. 23 24 Rick Noack, et al., White House Task Force Projects 100,000 to 240,000 Deaths in U.S., 24 Even With Mitigation Efforts, Washington Post. (Apr. 1, 2020, 12:02 AM),

25 https://cutt.ly/5tYT7uo.

26

25 Centers for Disease Control and Prevention, Interim Infection Prevention and Control Recommendations for Patience with Suspected or Confirmed Coronavirus Disease 2019

27 (COVID-19) in Healthcare Settings, https://cutt.ly/ztRAo0X.

28

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1 There is no vaccine against COVID-19 and no known medication to prevent or treat

2 infection.26 Social distancing—deliberately keeping at least six feet of space between

3 persons to avoid spreading illness27—and a vigilant hygiene regimen, including washing

4 hands frequently and thoroughly with soap and water, are the only known effective

5 measures for protecting against transmission of COVID-19.28 Because the coronavirus

6 spreads among people who do not show symptoms, staying away from people is the best

7 way to prevent contracting the virus. In other words, everyone (including Orange County

8 Jail officials) must act as is if everyone has the disease.

9

28. Once contracted, COVID-19 can cause severe damage to lung tissue,

10 including a permanent loss of respiratory capacity, and it can damage tissues in other vital

11 organs, such as the heart and liver.29

12

29. The risk of illness or death from COVID-19 is increased for older

13 populations.30 In a February 29, 2020 preliminary report, individuals age 50-59 had an

14 overall mortality rate of 1.3%; 60-69-year-olds had an overall 3.6% mortality rate, and

15 those 70-79 years old had an 8% mortality rate.31

16

17 26 Supra note 5.

18 27 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine,

19 https://cutt.ly/VtYYiDG.

20

28 Centers for Disease Control and Prevention, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html;

21 Exhibit I, Parker Decl. ¶ 14.

22 29 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl.
23 30 Xianxian Zhao et al., Incidence, clinical characteristics and prognostic factor of patients

24 with COVID-19: a systematic review and meta-analysis (Mar. 20, 2020),

25 https://cutt.ly/etRAkmt.

26

31 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, Worldometer, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report);

27 Exhibit H-A, Goldenson Decl. ¶ 27.

28

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1

30. People of any age who have certain underlying medical conditions, including

2 lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis

3 patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from

4 cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease),

5 inherited metabolic disorders, stroke, developmental disabilities, and asthma, also have an

6 elevated risk.32 Early reports estimate that the mortality rate for those with cardiovascular

7 disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory

8 disease, and 7.6% for cancer.33 People with all of these conditions are people with

9 disabilities protected under federal disability rights laws.

10

31. In many people, COVID-19 causes fever, cough, and shortness of breath.

11 However, for people over the age of fifty or with medical conditions or disabilities that

12 increase the risk of serious COVID-19 infection, shortness of breath can be severe.34 Most

13 people in higher risk categories who develop serious illness will need advanced support.

14 This requires highly specialized equipment like ventilators that are in limited supply, and

15

16 32 Exhibit I, Parker Decl. ¶ 19; Exhibit H-A, Goldenson Decl. ¶ 27; Centers for Disease

17 Control

and

Prevention,

Symptoms

of

Coronavirus,

18

https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (“Older adults and people who have severe underlying medical conditions like heart or lung disease

19 or diabetes seem to be at higher risk for developing more serious complications from

20

COVID-19 illness”); World Health Organization, Coronavirus disease (COVID-19) advice for the public: Myth busters, https://cutt.ly/dtEiCyc (“Older people, and people with pre-

21 existing medical conditions (such as asthma, diabetes, heart disease) appear to be more

22 vulnerable to becoming severely ill with the virus.”).

23

33 World Health Organization, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), 12 (Feb. 28, 2020) https://www.who.int/docs/default-

24 source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf

(finding

25

fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic

26 respiratory disease, and 7.6% for cancer”).

27 34 Zhao, supra note 30.

28

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1 an entire team of care providers, including nurses, respiratory therapists and intensive care

2 physicians.35

3

32. In serious cases, COVID-19 causes acute respiratory disease syndrome

4 (“ARDS”), which is life-threatening; those who receive ideal medical care with ARDS

5 have a 30% mortality rate.36 Even in non-ARDS cases, COVID-19 can severely damage

6 lung tissue, which requires an extensive period of rehabilitation, and in some cases, causes

7 permanent loss of breathing capacity.37 COVID-19 may also target the heart, causing a

8 medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis

9 can reduce the heart’s ability to pump.38 This reduction can lead to rapid or abnormal heart

10 rhythms in the short term, and long-term heart failure that limits exercise tolerance and the

11 ability to work.

12

33. COVID-19 can also trigger an over-response of the immune system and result

13 in widespread damage to other organs, including permanent injury to the kidneys and

14 neurologic injury.39

15

34. These complications can manifest at an alarming pace. Patients can show the

16 first symptoms of infection in as little as two days after exposure, and their condition can

17 seriously deteriorate in as little as five days or sooner.40

18

19 35 Exhibit I, Parker Decl. at ¶ 26.

20 36 Letter from the Faculty at the Johns Hopkins School of Medicine, School of Nursing,

21

and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25, 2020, https://cutt.ly/stERiXk.

22 37 Exhibit J, Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 5, Declaration of Dr. 23 Jonathan Louis Golob at ¶ 7.

24 38 Id.

25 39 Id.

26

40 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23,

27 2020), https://cutt.ly/atJPt5B.

28

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1

35. Even some younger and healthier people who contract COVID-19 may

2 require supportive care, including supplemental oxygen, positive pressure ventilation, and

3 in extreme cases, extracorporeal mechanical oxygenation.41

4

36. The need for care, including intensive care, and the likelihood of death, is

5 much higher from COVID-19 infection than from the seasonal influenza.42 According to

6 recent estimates, the fatality rate of people infected with COVID-19 is about ten times

7 higher than a severe seasonal influenza, even in advanced countries with highly effective

8 health care systems.43 For people in the highest risk populations, the fatality rate of

9 COVID-19 infection is about 15 percent.44

10

37. Patients who do not die from serious cases of COVID-19 may face prolonged

11 recovery periods, including extensive rehabilitation from neurologic damage, loss of digits,

12 and loss of respiratory capacity.45

13

38. It is not yet clear whether previous infection with COVID-19 confers

14 protection from reinfection, and the CDC has warned against assuming that the presence

15 of COVID-19 antibodies confers such protection.46

16

17

18

19

20 41 Exhibit J, Golob Decl., supra note 37 ¶ 5.

21 42 Id. at ¶ 4.

22

43 McKay, supra note 21. 44 Exhibit J, Golob Decl., supra note 37 at ¶ 4.

23 45 Id.

24 46 CDC, Interim Guidelines for COVID-19 Antibody Testing (last revised May 23, 2020),

25 https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html

26

(“[I]t remains uncertain whether individuals with antibodies (neutralizing or total) are protected against reinfection with SARS-CoV-2, and if so, what concentration of

27 antibodies is needed to confer protection.”)

28

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1

B. COVID-19 Poses Special Risks to People Who are Incarcerated.

2

39. Beyond the general public health risks the COVID-19 pandemic presents,

3 people who are incarcerated face a particularly acute threat of illness, permanent injury,

4 and death.

5

40. People in congregate environments where they live, eat, and sleep in close

6 proximity are at increased danger of contracting COVID-19, as already evidenced by the

7 rapid spread of the virus across the country in jails,47 in cruise ships48 and nursing homes.49

8 In particular, it is virtually impossible for people who are confined in crowded prisons,

9 jails, and detention centers to engage in the necessary social distancing and hygiene

10 required to mitigate the risk of transmission. For example, dramatic outbreaks have taken

11 hold in the Cook County Jail50 and Rikers Island in New York City, where the transmission

12 rate for COVID-19 is estimated to be the highest in the world.51 The CDC also warns of

13 “community spread” where the virus spreads easily and sustainably within a community

14 where the source of the infection is unknown.52

15

16

17 47 Supra note 2.

18 48 The CDC is currently recommending that travelers defer cruise ship travel worldwide.

19

“Cruise ship passengers are at increased risk of person-to-person spread of infectious diseases, including COVID-19.” COVID-19 and Cruise Ship Travel, Centers for Disease

20 Control and Prevention, https://cutt.ly/7tEEQvT.

21 49 The CDC notes that long-term care facilities and nursing homes pose a particular risk because of “their congregate nature” and the residents served. Centers for Disease Control
22 and Prevention, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, 23 https://cutt.ly/7tEEITH.

24 50 See supra note 2.

25

51 Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo.

26 52 Centers for Disease Control and Prevention, How Coronavirus Spreads,

27 https://cutt.ly/jtEE9vG.

28

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1

41. Correctional settings further increase the risk of contracting COVID-19 due

2 to the high numbers of people with chronic, often untreated, illnesses housed in a setting

3 with minimal levels of sanitation, limited access to personal hygiene, limited access to

4 medical care, presence of many high-contact surfaces, and no possibility of staying at the

5 necessary distance from others.53

6

42. Correctional facilities house large groups of people together, and move

7 people in groups.54 They frequently have insufficient medical care for the population even

8 outside of times of crisis.55 Hot water, soap, and paper towels are often in limited supply.

9 Incarcerated people, rather than professional cleaners, are responsible for cleaning the

10 facilities56 and often are not given appropriate supplies. People in jails have high rates of

11 disabilities, including the disabilities that create particular risk factors for COVID-19

12 complications and death. The Bureau of Justice Statistics reports that people in jail are

13 four times as likely as the general population to have a disability, and this is almost

14

15

16

17 53 Letter from the Johns Hopkins Faculty, supra note 36; Exhibit K, Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.) at Doc. No. 42 (Mar. 16, 2020) (Declaration of Dr. Jaimie Meyer)
18 (noting, inter alia, that jails environments have reduced prevention opportunities, increased 19 susceptibility, and are often poorly equipped to diagnose and manage outbreaks of infection
disease). 20 54 See, e.g, Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the 21 Coronavirus, Mother Jones (Mar. 6, 2020), https://cutt.ly/GtRSi3e.

22 55 See, e.g., Steve Coll, the Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019),

23 https://cutt.ly/ftERHNg.

24

56 See, e.g., Wendy Sawyer, How much do incarcerated people earn in each state?, Prison Policy Initiative, (Apr. 10, 2017); https://cutt.ly/qtER2bh (noting that “custodial,

25 maintenance, laundry” and “grounds keeping” are among the most common jobs for

26

incarcerated people); North Carolina Dept. of Corrections, North Carolina Prison Inmates at Work, https://cutt.ly/jtERCbb (noting that cleaning the grounds and facilities is one of

27 the jobs of incarcerated persons in North Carolina).

28

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1 certainly an undercount.57 BJS also reports that people in jail are disproportionately

2 affected by many of the specific conditions that increase risk of COVID-19 complications

3 or death.58

4

43. Outbreaks of the flu regularly occur in jails. During the H1N1 epidemic in

5 2009, jails and prisons dealt with a disproportionately high number of cases.59

6

44. Numerous public health experts, including Dr. Gregg Gonsalves,60 Ross

7 MacDonald,61 Dr. Marc Stern,62 Dr. Oluwadamilola T. Oladeru and Adam Beckman,63 Dr.

8

9

10

11

12

13

57 Jennifer Bronson et al., Special Report: Disabilities Among Jail and Prison Inmates, 2011-12, U.S. Dept. of Justice Bureau of Prison Statistics (Dec. 2015) available at

14 https://www.bjs.gov/content/pub/pdf/dpji1112.pdf.

15 58 Id. at 2-3.

16 59 See, e.g., Exhibit K, Meyer Decl., supra note 53 at ¶ 19; Exhibit J, Golob Decl., supra

17

note 37 at ¶ 13. This H1N1 “swine flu” pandemic outbreak spread dramatically in jails and prisons in 2010, but that strain of virus had a low fatality rate because of the characteristics

18 of the virus—COVID-19’s fatality rate is far higher. David M. Reutter, Swine Flu

19

Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://cutt.ly/ytRSkuX.

20 60 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, 21 Connecticut Mirror (Mar. 11, 2020), https://cutt.ly/BtRSxCF.

22 61Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (Mar. 19, 2020), https://cutt.ly/ptRSnVo.

23 62 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions

24 in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (Mar. 5, 2020),

25 https://cutt.ly/EtRSm4R.

26

63 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HealthAffairs (Mar. 10, 2020),

27 https://cutt.ly/QtRSYNA.

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 22 of 73 Page ID #:1574

1 Anne Spaulding,64 Dr. Homer Venters,65 Jaimie Meyer,66 the faculty at the Johns Hopkins

2 schools of nursing, medicine, and public health,67 and Josiah Rich68 have all strongly

3 cautioned that people booked into and held in jails are likely to face serious, even grave,

4 harm due to the outbreak of COVID-19.

5

45. The CDC is a federal agency that is part of the U.S. Department of Health

6 and Human Services. It serves as the national focus for developing and applying disease

7 prevention and control, environmental health, and health promotion and health education

8 activities designed to improve the health of the people of the United States. The CDC is

9 responsible for controlling the introduction and spread of infectious diseases, and provides

10 consultation and assistance to other nations and international agencies to assist in

11 improving their disease prevention and control, environmental health, and health

12 promotion activities. It also provides program expertise and assistance in responding to

13 Federal, State, local, and private organizations on matters related to disease prevention and

14 control activities.69

15

16

17

18

64 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (Mar. 9, 2020),

19 http://www.chip.sph.emory.edu/documents/For%20Correctional%20Facility%20Leaders

20 hip_2020.pdf .

21

65 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (Mar. 12, 2020), https://cutt.ly/jtRSPnk.

22 66 Exhibit K, Meyer Decl., supra note 53.

23 67 Supra note 36.

24 68 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus

25 Impact on Prisons, The Guardian (Mar. 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH.

26

69 Centers for Disease Control and Prevention, Mission Statement, https://www.cdc.gov/about/organization/cio-orgcharts/pdfs/CDCfs-508.pdf (last visited

27 Apr. 28, 2020).

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 23 of 73 Page ID #:1575

1

46. Because of the extraordinary danger that COVID-19 will spread in jails and

2 prisons, the CDC has issued specific guidance for dealing with correctional and detention

3 facilities, including local jails.70 The guidance was published on March 23, 2020. It

4 acknowledges that incarcerated people are forced to exist “within congregate

5 environments” that “heighten[] the potential for COVID-19 to spread once introduced,”

6 especially given that “[t]here are many opportunities for COVID-19 to be introduced into

7 a correctional or detention facility,” including “daily staff ingress and egress” as well as

8 “high turnover” of “admit[ted] new entrants.” In light of these concerns, the guidance

9 recommends that detention facilities “explore strategies to prevent over-crowding of

10 correctional and detention facilities during a community outbreak.” The guidance further

11 recommends that the correctional facilities:

12

a. Post signage throughout the facility communicating COVID-19

13

symptoms and hand hygiene instructions, ensure such signage is

14

understandable for non-English speaking people as well as those with

15

low literacy, and provide clear information about the presence of

16

COVID-19 cases within a facility and the need to increase social

17

distancing and maintain hygiene precautions;

18

b. Ensure sufficient stocks of hygiene and cleaning supplies, including

19

tissues; liquid soap where possible; hand drying supplies; alcohol-

20

based hand sanitizer; cleaning supplies effective against the

21

coronavirus; and recommended personal protective equipment like

22

face masks, disposable medical gloves, and N95 respirators;

23

c. Provide incarcerated people no-cost access to soap (providing liquid

24

soap where possible), running water, hand drying machines or

25

disposable paper towels for hand-washing, and tissues (providing no-

26

27 70 CDC, Interim Guidance, supra note 40.

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 24 of 73 Page ID #:1576

1

touch trash receptacles for disposal);

2

d. Suspend co-pays for incarcerated people seeking medical evaluation

3

for respiratory symptoms;

4

e. Even if COVID-19 cases have not been identified locally or inside,

5

implement “intensified cleaning and disinfecting procedures” that

6

clean and disinfect high-touch surfaces and objects “[s]everal times

7

per day,” and ensure adequate supplies to support intensified cleaning

8

and disinfection practices”;

9

f. Perform pre-intake screening and temperature checks for all new

10

entrants;

11

g. Adopt social distancing strategies to increase space between

12

individuals, including rearranging bunking to ensure that beds are at a

13

minimum six feet apart in all directions, increasing space in lines and

14

waiting areas, staggering meals and rearranging seating during meals

15

so that detainees are sitting on only one side of the table and are

16

separated with adequate space;

17

h. Medically isolate confirmed and suspected cases and quarantine of

18

contacts.

19

47. According to the CDC, “[f]acilities should make every possible effort to place

20 suspected and confirmed COVID-19 cases under medical isolation individually.”71

21 Further, quarantined individuals should be “housed separately, in single cells with solid

22 walls . . . and solid doors that close fully.”72 Cohorting should only be considered as a last

23 resort, and even then all incarcerated people must have enough room to retain at least 6

24 feet of space between each other at all times. If a facility has no option but to implement

25 cohorting, it must do so while following several strict precautions. These precautions

26

27 71 Id. 28 72 Id.

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 25 of 73 Page ID #:1577

1 include mandating that individuals wear face masks at all times, ensuring that individuals

2 with laboratory-confirmed cases are not mixed with individuals who have not tested

3 positive, and ensuring that individuals with respiratory problems are not cohorted “unless

4 no other possibilities exist.”73

5

C. Defendants’ Actions Have Been Inadequate to Protect People

6

Incarcerated in the Orange County Jail From These Risks of Infection.

7

48. The OCSD’s response has been inadequate to curtail the rampant spread of

8 COVID-19 through the Jail. Plaintiffs and other class members are detained in unsafe

9 conditions where they are at intolerable risk of serious illness and death. Two of the

10 medically vulnerable and disabled Plaintiffs were housed in special housing for high

11 medical-needs detainees, where they were exposed and developed COVID-19. After

12 contracting COVID-19, the women were housed in a common cell, P-13, despite the

13 CDC’s clear directive to “be especially mindful” of persons who are at a higher risk of

14 severe illness from COVID-19 and seek to avoid if at all possible cohorting with other

15 infected individuals. Defendants have not complied with the majority of the CDC

16 Guidelines despite the increasing number of infections in the Orange County Jail since

17 these guidelines were first issued. Without further action, it is likely that the epidemic

18 inside the Orange County Jail will continue to worsen. As of June 8, 2020 there have been

19 128,812 confirmed cases of COVID-19 in California,74 with 7,527 confirmed cases in

20 Orange County.75 To date, there have been 4,626 deaths from COVID-19 in California

21

22

23 73 Id.

24 74 California Department of Public Health, California COVID-19 By The Numbers,

25

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx#CO VID-19%20by%20the%20Numbers.

26 75 OC Health Care Agency, Orange County COVID-19 Case Counts,

27 https://occovid19.ochealthinfo.com/coronavirus-in-oc.

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 26 of 73 Page ID #:1578

1 alone,76 with 177 deaths in Orange County.77 The Governor of California has declared a

2 statewide emergency,78 as have local Orange County officials.79 Governor Newsom

3 directed a statewide stay at home order, requiring all Californians to stay home if not

4 performing essential activities.80

5

49. Defendants have not ensured social distancing at the Jail. The Orange County

6 Jail consists of four physically separate facilities that operate as a single system. There is

7 constant movement of staff and incarcerated people among each of the four facilities,

8 widening the circles of potential outbreak and exposure. These facilities include the Men’s

9 Central Jail, the Women’s Central Jail, the Theo Lacy Facility, and the Intake and Release

10 Center. Each of these facilities is configured differently and has a different type of

11 housing.81 The rated capacity of each facility is determined on a biannual basis by the

12 California Board of State and Community Corrections (BSCC), an independent statutory

13 agency that, inter alia, inspects local correctional facilities in California for compliance

14

15

16 76 Supra note 74.

17 77 Supra note 75.

18

78 Office of Governor Gavin Newsom, Governor Newsom Declares State of Emergency to Help State Prepare for Broader Spread of Covid-19, (Mar. 4, 2020),

19 https://www.gov.ca.gov/2020/03/04/governor-newsom-declares-state-of-emergency-tohelp-state-prepare-for-broader-spread-of-covid-19/.
20 79 Brittany Martin, Why Orange County has Declared a Coronavirus Emergency, Los 21 Angeles Magazine, (Feb. 27, 2020), https://www.lamag.com/citythinkblog/orange-county-

22 coronavirus-emergency/.

23

80 Office of Governor Gavin Newsom, Governor Gavin Newsom Issues Stay at Home Order (Mar. 19, 2020), https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-

24 issues-stay-at-home-order/.

25 81 See generally, State of California Board of State and Community Corrections 2016-2018

26

Biennial Inspection: Orange County’s Type II and Court Holding Facilities, Penal Code Section 6031 (Sep. 26. 2018), https://drive.google.com/file/d/1h-

27 E41vMsJa3S06bW8PGSTwS3DWpPbzj5/view?usp=sharing.

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 27 of 73 Page ID #:1579

1 with Title 15 regulations, which set minimum standards for these facilities.82 The rated

2 capacity of a facility means the maximum number of incarcerated occupants for which a

3 facility’s cells or dormitories, except those dedicated for health care or disciplinary

4 separation housing, were planned and designed in conformity to Title 15 regulations

5 (maintained by BSCC) and Title 24 regulations (maintained by the California Building

6 Standards Commission).83

7

50. The Orange County Jail is inspected against the Type II facility regulations.84

8 For dormitories rated for use with single bunks, a minimum of 50 square feet per person is

9 required.85 For dormitories rated for use with double bunks, a minimum of 70 square feet

10 per person is required.86 For single or double-occupancy cells, a minimum of 70 square

11 feet per person is required in a Type II facility.87 However, the BSCC rated capacities were

12 not designed with a pandemic that requires social distancing in mind.88

13

51. Theo Lacy has a rated capacity of 2,080 occupants. It is composed of a large

14 number of barrack style dorms, seven module units where people are housed in two-person

15 cells that share common day rooms and shower facilities, and two module units where

16

17

82 Board of State and Community Corrections, About the Board of State and Community Corrections (last visited Apr. 28, 2020), http://www.bscc.ca.gov/m_bsccboard/; BSCC,

18 Title 15 Minimum Standards for Local Detention Facilities (effective Oct. 1, 2019),

19

http://www.bscc.ca.gov/wp-content/uploads/Adult-Title-15-Regulations-Effective10.1.2019.pdf.

20 83 BSCC, Title 15 Minimum Standards, supra at 82.

21 84 Id.

22 85 California Board of State and Community Corrections, Title 24 Minimum Standards

23 for Local Detention Facilities, Part Two, Section 1231 Minimum Standards for Adult Detention Facilities (effective July 1, 2018), § 1231.2.8(1), http://www.bscc.ca.gov/wp-
24 content/uploads/Adult-Title-24-Part-1-Sept-2017-Part-2-July-2018.pdf.

25 86 Id. § 1231.2.8(1).

26 87 Id. §§ 1231.2.6(2) & 1231.2.7(2).

27 88 Exhibit H-B Goldenson Supplemental Decl., ¶ 3

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 28 of 73 Page ID #:1580

1 people are housed in single-person cells that share common day rooms and shower

2 facilities.89 The Men’s Central Jail has a rated capacity of 1,219 occupants. It is composed

3 primarily of module units where people are housed in cells that vary in size from four to

4 eight occupants; occupants share toilet and shower facilities.90 There are also dormitory

5 style units where occupants share common day rooms, shower, and toilet facilities.91 The

6 Women’s Central Jail has a rated capacity of 274 occupants. It is composed primarily of

7 dormitory style units which sleep up to 30 occupants in one unit, where occupants share

8 toilet and shower facilities.92 There is also one unit where people are housed in single cells

9 and share shower facilities.93 The Intake and Release Center has a rated capacity of 407

10 occupants. It is composed primarily of module units where people are housed in single-

11 person cells that share common day rooms and shower facilities.94 Collectively, the Orange

12 County Jail has a total of 51 medical isolation cells.95

13

52. Given the current population, social distancing in these facilities is not

14 possible. People in the Orange County jail are regularly housed in group barracks or in

15 multiple-person cells (often containing as many as 8 bunks in each cell) that share

16 dayrooms with other cells. The largest number of people are housed in the Theo Lacy

17 facility, which consists largely of large barrack-style dorms.96 People in barracks sleep in

18

19 89 See supra, note 81, BSCC 2016-2018 Biennial Inspection, at 50–56.

20 90 See id. at 47–40.

21 91 Id.

22 92 See id. at 44–45.

23 93 Id.

24 94 See id. at 26–32.

25

95 See id. at 26–56. There are 15 medical isolation cells in the Women’s Central Jail and 26 at the Theo Lacy Facility. There are no medical isolation cells at the Men’s Central

26 Jail or the Intake and Release Center.

27 96 See supra note 81.

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 29 of 73 Page ID #:1581

1 bunk beds in close proximity to each other, much closer than six feet apart.97 People in

2 multi-person cells sleep in similarly close proximity.98 Even persons who are detained in

3 single or double bunked cells often remain constantly in close proximity and air space with

4 others in their modules.99 Indeed, the Commander of Custody Operations of the Orange

5 County Jail has conceded unequivocally that the “[t]he Sheriff’s jail facilities do not allow

6 for spacing of six feet between incarcerated people.”100

7

53. Housing units in jails generally lack adequate ventilation, a factor that

8 facilitates the likelihood of airborne transmission of COVID-19.101 Some cells have open

9 bars and many open directly into communal day rooms. Detainees congregate in groups

10 in the day rooms, often in numbers too large for social distancing.102 They are forced to

11 line up close together to receive mail.103 They share phones “basically shoulder to shoulder

12

13 97 Exhibit L, Declaration of Dalton James Cardone ¶ 7 (before quarantine, slept with a large

14 group, may 60 people, in an open dorm); Exhibit D, Hernandez Decl. ¶ 7 (“[t]he beds are

15

very close together, only a couple of inches apart” and his feet touch his cellmates’ feet while sleeping).

16 98 Exhibit C, Ahlman Decl. ¶ 7 (“Our bunks are about two feet from one another.”); Exhibit

17 D, Hernandez Decl. ¶ 7 (“The beds are very close together, only a couple of inches apart.

18

If people sleep with their heads facing each other, their heads will touch. I sleep with my feet facing a cellmate’s feet, and our feet touch each other’s during the night.”).

19 99 Exhibit M, Declaration of Mark Trace ¶ 7 (all of the cells in the module have open bars

20 and share the same air); Exhibit N, Declaration of Fernando Maldonado ¶ 11 (“Our bunks

21

are so close that we can reach other’s bunk when we lay down.”); Exhibit O, Declaration of Sean S. Wells ¶ 9 (“It is impossible for my cellmate and I to maintain six feet distance

22 from each other when we are confined in our cell, which is about 21 hours a day.”).

23 100 ECF No. 66-4, Declaration of Commander Joseph Balicki, ¶ 2.A.

24 101 Exhibit H-A, Goldenson Decl. ¶ 19.

25

102 Exhibit C, Ahlman Decl. ¶ 22.; Exhibit A, Wagner Decl. ¶ 16 (entire module shares day room, 8 people at a time together); Exhibit P, Declaration of Cecibel Caridad Ortiz ¶

26 6 (dayroom shared by 7 people in module, without enough space to keep six feet apart).

27 103 Exhibit D, Hernandez Decl. ¶ 26.

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 30 of 73 Page ID #:1582

1 with each other,”104 and share communal shower spaces.105 Many detainees must also share

2 communal toilets.106

3

54. There is increasing evidence that COVID-19 spreads through fecal matter.107

4 This makes shared bathrooms—like the communal toilets in the Jail—a likely source of

5 transmission, because flushing a toilet sends a plume of droplets into the air that could be

6 ingested by nearby individuals or land on surfaces.108

7

55. The jail relies on incarcerated people to perform much of the work of laundry,

8 food preparation and distribution across the jail.109 Incarcerated people prepare and cook

9 the food and serve meals in the chow hall at Theo Lacy, where large groups of people

10 continue to congregate for a hot meal.110 Along with jail staff, they deliver meals and

11 laundry to modules in each of the jail buildings.111 Incarcerated staff process new incoming

12

13

14 104 Exhibit C, Ahlman Decl. ¶ 21; Exhibit N, Maldonado Decl. ¶ 15 (describing inability to

15

socially distance while using telephones that are “about two feet away from each other.”); Exhibit O, Wells Decl. ¶ 15.

16 105 Exhibit A, Wagner Decl. ¶ 17.

17 106 Exhibit C, Ahlman Decl. ¶ 24 (“All of the women in the medical tank share two toilets.

18 Sometimes we have to wait in line for these. If we wait in line we can not space out six feet

19

apart.”); Exhibit D, Hernandez Decl. ¶ 10 “We all use the same toilet, shower, and table for eating.”); Id. ¶ 14 (“The phones are [in the dayroom] about three feet away from the

20 table and two feet away from the toilet.”).

21 107 Exhibit I, Parker Decl. ¶ 15.

22 108 Id.

23

109 Exhibit M, Trace Decl. ¶¶ 7, 14; Exhibit D, Hernandez Decl. ¶ 23; Exhibit Q, Declaration of Cynthia Campbell ¶ 19; Exhibit A, Wagner Decl. ¶ 13; Exhibit R,

24 Declaration of Julian Miranda, Jr. ¶ 8.

25 110 Orange County California, Grand Jury, Jail Food: Reservation Required, pp. 5-6

26 (describing meal preparation and by detainees).

27

111 Exhibit D, Hernandez Decl. ¶ 19; Exhibit Q, Campbell Decl. ¶ 21; Exhibit S, Declaration of Michael Seif ¶ 18; Exhibit T, Declaration of Jose Armendariz ¶¶ 35-27 (describing

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 31 of 73 Page ID #:1583

1 detainees, swapping laundered jail clothing for their street clothing, and cleaning the

2 showers as the newly admitted individuals shower in groups.112 The incarcerated staff who

3 perform each of these roles—laundry, new intake processing, and food preparation—are

4 housed in common worker dorms.113 Many of these individuals, who travel between

5 facilities and housing units for their jobs, have tested positive for COVID-19.114

6 Respondent has not reported how many correction staff have tested positive for COVID-

7 19, but some of the initial media stories about the outbreak in the jail reported staff who

8 had become infected. Like the incarcerated staff, OCSD staff with the virus who travel the

9 jail facilities are another source of infection.

10

56. Although court hearings have slowed, some hearings are still held in person

11 at the court house and others occur via video-conferencing. In both instances, people are

12 brought across the jail from their cells, put in close contact with each other in crowded

13 holding cells, and then returned to their cell modules or barracks without testing or

14 screening.115 Incarcerated people are regularly in close contact with each other and large

15

16

17 observing staff and incarcerated workers handle and distribute meals without wearing masks properly, without changing gloves.).
18 112 Exhibit U, Declaration of Donald Timmons ¶ 15.

19 113 Id. at ¶ 5; Exhibit R, Miranda, Jr. Decl. ¶¶ 7-9; Exhibit V, Declaration of Leonard

20 Farias¶ 6; Exhibit W, Declaration of Mitchell Lentz ¶¶ 5-6; Exhibit X, Declaration of

21 Carlos Godinez Sanchez ¶¶ 8-9.

22

114 Exhibit U, Timmons Decl.¶ 17; Exhibit V, Farias Decl. ¶ 19; Exhibit R, Miranda, Jr. Decl.¶ 21.

23 115 Exhibit C, Ahlman Decl. ¶ 5 (describing being transported in the middle of March to

24 court with other women, then placed with 15 people in a 10 person holding cell “all on top

25

of each other, for close to two hours.”); Exhibit S, Seif Decl. ¶ 5 (traveling to court on a bus with over 30 people from other sectors, waiting in a holding cell for 7 hours at the

26 courthouse with 13 people, and then returning to the jail); Exhibit E, Saem Decl. ¶ 7

27

(transported to court in early March with 30 to 40 other people, and held in a holding cell with 30 other people); Exhibit O, Wells Decl. ¶ 12 (describing concern over cellmate’s

28

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 32 of 73 Page ID #:1584

1 groups of people on a daily basis.116 The jail guards do not facilitate social distancing

2 standards in common areas, and groups of over forty are regularly gathered during

3 recreational periods.117 Individuals move within and between the facilities.118 Group

4 movements within modules and across the jail “may cluster large numbers of people

5 together in small spaces, increase the risk of transmission between incarcerated persons

6 and throughout the facility.”119

7

57. When individuals at the jail require medical treatment, they must face a

8 gauntlet of crowded lines at the nurses’ stations and medical units.120 Medically at-risk

9 individuals are repeatedly placed in close contact with other people, including those who

10 exhibit COVID-19 symptoms, when they seek routine medical treatment.121 They may be

11

12

13 possible exposure to virus during a trip to court where he was in “close contact with about 14 20 other people during the day.”)

15 116 Exhibit C, Ahlman Decl. ¶ 5; Exhibit A, Wagner Decl. ¶¶ 6, 8 (people moved into his

16

pod in a large group); Exhibit P, Caridad Ortiz Decl. ¶ 18 (discussing an outside trip to visit a doctor); Exhibit M, Trace Dec. ¶ 15 (explaining frequent transfers of inmates in and

17 out of unit without quarantine period); Exhibit F, Castillo Decl. ¶¶ 8-11, 13, 21 (discussing

18

exposure while seeking/transiting to and from medical treatment); Exhibit Q, Campbell Decl. ¶ 14.

19 117 Exhibit D, Hernandez Decl. ¶ 30.

20 118 Id. ¶ 14 (describing moving to a new building because his cell became a quarantine area

21 and having to take a bus with 40 other people, “bunched up together,” being searched by guards without PPE, and held again in a crowded holding cell for hours).
22 119 Exhibit H-A, Goldenson Decl. ¶ 23. 23 120 Exhibit A, Wagner Decl. ¶ 8 (when he goes for daily blood pressure if there is a line

24 “we all sit on a set of stairs right next to each other”); Exhibit O, Wells Decl. ¶ 20

25

(describing it as “impossible to maintain six feet distance from medical and custody staff.”); Exhibit T, Armendariz Decl. ¶ 30 (“While we wait to be seen by an RN, we sit on

26 small dirty benches basically shoulder to shoulder.”).

27 121 Exhibit F, Castillo Decl. ¶¶ 8-11.

28

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1 escorted in groups by a guard to the nurses’ station, and must wait on crowded benches to

2 be seen.122

3

58. The conditions are harrowing for women who are nursing. Until late March

4 2020, the women had to travel to the nurses’ office to share the breast pump, even though

5 the space was not cleaned between uses.123 The women decided to start pumping milk in

6 their tanks after learning that COVID-19 had spread throughout the women’s facility, but

7 they must still travel to the nurses’ station multiple times a day to transport their breastmilk.

8 These trips make them nervous because they increase their exposure to the disease,

9 particularly because they must come into contact with people who are seeking treatment

10 for COVID-19 and other illnesses in the medical unit.124

11

59. Potentially contagious persons are housed alongside asymptomatic bunk and

12 cellmates, exacerbating the likelihood of rapid COVID-19 spread. As more and more

13 people in the jail become symptomatic, presumptively healthy detainees must continue to

14 share close quarters with large numbers of symptomatic individuals who have not been

15 isolated or tested despite having symptoms.125 Defendants used narrow criteria for treating

16 detained persons as requiring a change in housing, despite the fact that numerous persons

17 describe common COVID-19 symptoms like headaches, dry coughs or inability to smell.126

18 Additionally, Defendants are not consistently isolating symptomatic individuals.

19

20 122 Exhibit Q, Campbell Decl. ¶ 11; Exhibit F, Castillo Decl. ¶ 10.

21 123 Exhibit C, Ahlman Decl. ¶ 11.

22 124 Id. at 12-13.

23

125 Exhibit M, Trace Decl. ¶ 9 (medical personnel denied test, and said it was because Mr. Trace did not have a fever, although he shared ventilation with other detainees in nearby

24 modules who tested positive).

25 126 Exhibit S, Seif Decl. ¶ 7 (despite trouble breathing, headache and likely exposure to a

26

guard who tested positive, Mr. Seif has not been seen by a doctor or tested for COVID19); Exhibit Y, Declaration of Jaime Herrera ¶ 7 (despite headache and exposure to guard

27 who tested positive, Mr. Herrera has not been tested); Exhibit M, Trace Decl. ¶ 9.

28

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1 Frequently, people who are symptomatic or were close contacts of exposed individuals

2 continue to be housed with others—and potentially infecting them—until they receive

3 positive COVID-19 test results.127 Although Defendants have increased testing in recent

4 weeks, the testing still falls short of the CDC recommendation for sentinel monitoring of

5 asymptomatic individuals in congregate living settings.128 Detection of asymptomatic and

6 mildly symptomatic individuals is critical because those individuals can transmit the

7 disease.129 Both California and the federal government have identified testing of all

8 individuals in jails as a priority.130 Without knowing who in the Jail has COVID-19,

9 Defendants cannot effectively track close contacts. Defendants have failed to provide for

10 adequate contact tracing, a “priority” in congregate settings and a “key strategy for

11 preventing further spread of COVID-19.”131

12

60. The Orange County Jail has failed to follow the CDC’s guidance with respect

13 to isolation of suspected cases and its use of cohorting.132 Only after people test positive

14 for COVID-19 are they removed from their barrack or modular housing and transferred to

15 isolation. Defendants are not making “every effort to quarantine close contacts of COVID-

16

17

18

19

127 See, e.g., Exhibit Z, Declaration of Sandy Gonzalez ¶¶ 7-8; Exhibit AA, May 13, 2020 Declaration of Monique Castillo ¶¶ 3-7;

20 128 White House, CDC & FDA, Testing Blueprint, 3, 6 & n.1 (April 27, 2020);

21 https://www.whitehouse.gov/wp-content/uploads/2020/04/Testing-Blueprint.pdf.

22 129 Exhibit I, Parker Decl. ¶ 17.

23

130 Id. at ¶ 17, n. 12; Testing Blueprint, supra note 130 (“Identifying asymptomatic cases in these settings is a high priority because the people who live in them and use them are

24 at high risk for both infection and poor clinical outcomes.”).

25 131 CDC, Contact Tracing, Part of a Multipronged Approach to Fight the COVID-19

26

Pandemic, at 1-2 (April 29, 2020), https://www.cdc.gov/coronavirus/2019nco/downloads/php/principles-contact-tracing-booklet.pdf.

27 132 Exhibit A, Wagner Decl. ¶ 5.

28

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1 19 cases individually,” increasing the risk that others will be infected.133 People who have

2 been exposed to positive cases have not always been quarantined and are themselves often

3 still in group settings, where new individuals are added.

4

61. As the jail has sought to isolate or quarantine some symptomatic or confirmed

5 cases, it has failed to adequately protect those who were exposed or remain in large cells

6 or units. Defendants inappropriately move people in and out of cohorts before waiting the

7 full 14 days.134 For example, as new sick individuals are identified, groups of people have

8 been moved between housing units and rearranged in new combinations, and individuals

9 who have not tested positive are required to use the same showers and phones with those

10 who have tested positive.135 In dorm or module settings, after the infected individuals have

11 been moved, the jail assigns other detained people to clean the cells of the suspected or

12 confirmed cases without any PPE, increasing their risk of exposure.136

13

62. Recent test results show the dangerous consequences of the Jail’s failures to

14 properly quarantine. On or around April 25, the Jail expanded its testing to evaluate its

15

16

17

18

19 133 Exhibit H-A, Goldenson Decl. ¶ 45.

20

134 Exhibit R, Miranda Jr. Decl. ¶¶ 9-12, 22-25 (while housed in the worker unit A-5, Mr. Miranda was exposed to a person with COVID-19, then placed under group quarantine

21 without a mask where he eventually tested positive for COVID-19. After testing positive,

22 Mr. Miranda was transferred to a two-person cell in a rat-infested filthy module, M-25, where he shares phones and showers, including with some other men who do not have
23 COVID-19); Exhibit L, Cardone Decl. ¶¶ 7-8 (after developing a fever, Mr. Cardone was

24 moved from a 60-person barrack to the R-mod, where he was placed in a 7-day quarantine with 10 other people; he was tested for COVID-19 and when his results were negative he
25 was moved to yet another cohort quarantine in O-41 for another 7 days).

26 135 Exhibit R, Miranda Jr. Decl. ¶ 25.

27 136 Id., at ¶¶ 9, 12.

28

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1 quarantined population and 18 of 22 asymptomatic people who were being considered for

2 reintegration into the larger population tested positive.137

3

63. As the disease has spread, and quarantine needs grown, this has put additional

4 pressure on non-quarantined housing units, causing them to become more crowded. Don

5 Wagner, a 68-year-old man with serious medical conditions, was in a unit with 16 people

6 and no cell mate until late April, allowing him to avoid at least some of the dangerous

7 contact of close quarters. But on April 22, 2020, the jail added an additional 16 people to

8 the unit, double bunking every cell, including his.138

9

64. Even in ordinary times, the medical care system in the Orange County jail is

10 overburdened. The medical care system has been further encumbered due to the pandemic.

11 People in the jail must routinely wait long periods of time to receive medical attention even

12 after they request care.139 During the current crisis, medical care in the jails has further

13 slowed, creating heightened risks for patients.140 This poses special risks to people who

14 already have significant medical needs and disabilities. When people have poorly-

15 controlled chronic conditions, this puts them at even greater risk of death if infected with

16 COVID-19.

17

18

19

20

137 Sareen Habeshian, 18 inmates at O.C. jails test positive for COVID-19, after testing is expanded to asymptomatic people in quarantine, KTLA 5 (Apr. 25, 2020),

21 https://ktla.com/news/local-news/18-inmates-at-o-c-jails-test-positive-for-covid-19-aftertesting-is-expanded-to-asymptomatic-people-in-quarantine/.
22 138 Exhibit A, Wagner Decl. ¶ 6. 23 139 Exhibit Q, Campbell Decl. ¶ 8; Exhibit M, Trace Decl. ¶ 8; Exhibit E, Saem Decl. ¶ 11.

24 140 Exhibit C, Ahlman Decl. ¶ ¶ 10-12 (explaining that nursing mothers are no longer able

25 to pump in the nurse’s office and she can no longer get fresh milk to her baby); Exhibit E,

26

Saem Decl. ¶ 11 (requires an eye examination and cannot get one scheduled); Exhibit Q, Campbell Decl. ¶ 8 (despite her serious medical conditions and the fact that she has felt

27 sick for a week and filled out three medical slips, she has not been able to see the doctor).

28

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1

65. Hygiene, information, and nutrition are other areas where the Jail has fallen

2 short. Incarcerated people have been insufficiently informed about the dangers COVID-

3 19 poses and about the safety measures public health officials advise. Although the CDC

4 recommends clear informational signage be posted in all languages spoken in the facility,

5 the Orange County Jail facilities have only provided sporadic and inadequate advisories.141

6

66. The PPE provided by the jail is ineffective, and is used and distributed

7 inadequately and inconsistently. People held in the jail describe the PPE as “swatches of

8 fabric” and not real masks, and explain that guards and workers do not consistently wear

9 them.142 Even in a unit where deputies explicitly told incarcerated people that one of their

10 colleagues had recently contracted COVID-19, many deputies do not wear gloves or

11

12

13

141 Exhibit A, Wagner Decl. ¶ 10 (describing barely audible announcements); Exhibit P, Caridad Ortiz Decl. ¶ 17; Exhibit D, Hernandez Decl. ¶ 29; Exhibit M, Trace Decl. ¶ 12

14 (announcement difficult to hear); Exhibit E, Saem Decl. ¶ 9.

15 142 Exhibit C, Ahlman Decl. ¶¶ 15, 16, Exhibit A, Wagner Decl. ¶ 11 (describing the PPE

16

as being “just swatches of fabric” that are not regularly replaced); Exhibit Q, Campbell Decl. ¶¶ 16-19; Exhibit D, Hernandez Decl. ¶¶ 17, 18; Exhibit M, Trace Decl. ¶¶ 14, 16

17 (inconsistent use of PPE by staff and jail workers); Exhibit E, Saem Decl. ¶ 12-13; Exhibit

18

N, Maldonado Decl. ¶ 17 (“Custody staff provided us with torn sheets to use as face coverings.”); Exhibit O, Wells Decl. ¶ 24; Exhibit T, Armendariz Decl. ¶ 27 (described

19 receiving “torn sheets . . . to use as bandanas/face coverings . . .”) and ¶ 28 (“I have seen

20

several deputies not wearing masks.”); Exhibit BB, Declaration of Charles Lucious ¶ 16 (“I was given a torn sheet to use as a mask about a month ago. I continue to wear the same

21 mask. There has never been any mask cleaning or exchange.”); Exhibit AA, May 13, 2020

22

Castillo Decl. ¶ 9 (“I still have a very thin mask that the jail provided. It’s so thin that I wear a bandanna underneath for more protection.”); Exhibit CC, Declaration of David

23 Mejia Sanchez ¶ 15 (“We receive only cut up sheets to use as masks. We just received

24

replacement masks on May 9, 2020 after using the last ones for over a month. I asked the guard if the masks were clean because they did not look washed, and he responded by

25 asking if I wanted it or not.”); Exhibit DD, Declaration of Daisy Ramirez ¶ 17 (“On May

26

9, 2020, Korrell Cole, who is also housed in Module N, Sector 31 of the Theo Lacy Facility, reported that he has a cloth mask, made from soiled sheets, with stains of feces and blood.

27 His cloth mask has only been exchanged once.”).

28

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1 masks.143 Incarcerated people have only received minimal PPE. Although some have

2 received masks, those masks were not replaced and have long ceased to function

3 effectively.144

4

67. Respondent has further heightened the risk to Petitioners by failing to

5 adequately clean spaces where COVID-19 cases spend time and by requiring detained

6 persons to assist in the cleaning of evacuated bed space and cells without appropriate

7 equipment. CDC Guidance directs that jails should: “Close off areas used by the infected

8 individual; [i]f possible, open outside doors and windows to increase air circulation in the

9 area; [and] [w]ait as long as practical, up to 24 hours under the poorest air exchange

10 conditions before beginning to clean and disinfect, to minimize potential for exposure to

11 respiratory droplets.” CDC Guidance, p. 18. The guidance further specifies that the

12 surfaces should be cleaned with detergent or soap if dirty as well as disinfectant, and that

13 staff or detained person performing the cleaning wear recommended PPE, including N95

14 respirator, gloves, gown, and eye protection as necessary for the disinfectant product. Id.

15 at 26. Contrary to this guidance, detained persons are forced to clean up cells and infected

16 areas with no or little PPE protection, and on some occasions, shortly after the infected

17

18

19

20

21

22 143 Exhibit S, Seif Decl. ¶¶ 9, 12.

23 144 Exhibit P, Caridad Ortiz Decl. ¶¶ 11,12; Exhibit C, Ahlman Decl. ¶ 1; Exhibit D,

24

Hernandez Decl. ¶¶ 17-18; Exhibit M, Trace Decl. ¶ 13; Exhibit F, Castillo Decl. ¶ 18; Exhibit EE, Declaration of Jeffrey Davis ¶ 3 (“I have not received adequate PPE. For a

25 mask, I was given a torn piece of cloth. I was given this ‘mask’ three weeks ago and it has

26

not been replaced or cleaned. I have not been given gloves or other protective gear at all.”); Exhibit U, Timmons Decl. ¶ 17 (“In both jobs, I used the same N-95 mask. I wore the mask

27 for 52 days straight before receiving a new one two days ago.”).

28

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1 person has been removed.145 Incarcerated people are responsible for cleaning their cells,

2 but they are not given adequate supplies to maintain a hygienic space.146

3

68. People in the Jail are becoming physically weakened and more susceptible to

4 disease because they are not receiving adequate nutrition. Many have not received hot

5 food in weeks and are receiving three paper sack meals a day. They describe meals that

6 consist of a few pieces of bread and a chunk of frozen meat.147

7

8 145 Exhibit R, Miranda, Jr. Decl. ¶ 10 (when asked to clean out belongings of the bunk of

9 a confirmed case, detained persons “were not given gloves or masks”); Exhibit W, Lentz

10

Decl. ¶ 13 (detainees not provided gloves, masks or other PPE before removing the bedding of the confirmed case); Exhibit FF, May 15, 2020 Declaration of Melissa

11 Ahlman ¶ 3 (volunteering to remove bedding of confirmed case in group cell after the

12 staff asked a person with medical vulnerabilities to clean out the space).

13

146 Exhibit C, Ahlman Decl. ¶ 19, 20; Exhibit A, Wagner Decl. ¶ 15; Exhibit P, Caridad Ortiz Decl. ¶ 15; Exhibit D, Hernandez Decl. ¶¶ 11-12; Exhibit M, Trace Decl. ¶ 18; Exhibit

14 F, April 22, 2020 Castillo Decl. ¶ 19; Exhibit E, Saem Decl. ¶ 16; Exhibit U, Timmons

15

Decl. ¶ 13 (“Cleaning supplies have not been given to us on a consistent basis. Recently, we did not receive supplies for two days. When we did, the spray bottles were half full and

16 we had an inch of water to mop with. The mop was dirty.”); Exhibit GG, May 12, 2020

17

Declaration of Melissa Ahlman Decl. ¶ 10 (“We are still only receiving a mop bucket with water and two towels every morning. We are not given any disinfectant. Sometimes the

18 water in the mop bucket is clear and sometimes it is bright yellow. We have no idea what

19

is in it.”); Exhibit HH, May 12, 2020 Declaration of Jaime Herrera Decl. ¶ 8 (“Cleaning supplies are still limited. We get supplies once a day and it is not available throughout the

20 day.”); Exhibit EE, Davis Decl. ¶ 4 (“I am not provided with adequate cleaning supplies. I

21

have not been provided with sanitizer or disinfectant. To clean my cell, I am only provided with a mop and a bucket of water.”); Exhibit II, May 11, 2020 Declaration of Michael Seif

22 Decl. ¶ 5 (“We are provided with cleaning supplies only on some mornings.”); Exhibit CC,

23

Mejia Sanchez Decl. ¶ 11 (“We are given one mop and one mop bucket with cleaning solution to clean the day room. . . . The mop is often so moldy that the dayroom smells

24 worse after cleaning. We have to use the same cleaning solution for all of the surfaces in

25

the dayroom and are not able to use fresh solution when, for example, moving from the showers to the phones.”).

26 147 Exhibit C, Ahlman Decl. ¶ 25; Exhibit P, Caridad Ortiz Decl. ¶16; Exhibit D, Hernandez

27 Decl. ¶ 19; Exhibit M, Trace Decl. ¶ 14; Exhibit F, Castillo Decl. ¶ 20.

28

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1

D. Existing Procedures and Protocols Will Not Be Sufficient to Ensure the

2

Safety of Class Members or the General Public.

3

69. Because of the severity of the threat posed by COVID-19, and its potential to

4 rapidly spread throughout a correctional setting, public health experts recommend the rapid

5 release from custody of people most vulnerable to COVID-19.148 Release protects the

6 people with the greatest vulnerability to COVID-19 from transmission of the virus, and

7 also allows for greater risk mitigation for people held or working in a jail and the broader

8 community.149 People who are medically vulnerable at the Orange County Jail are at “a

9 heighted risk for serious illness and death” and “[g]iven the high likelihood of contagion

10 and spread in the jail, the safety of these individuals is a pressing emergency that needs to

11 be addressed on an urgent basis.”150 Release of the most vulnerable people from custody

12 also reduces the burden on the region’s health care infrastructure by reducing the likelihood

13 that an overwhelming number of people will become seriously ill from COVID-19 at the

14 same time.151

15

70. Notwithstanding the fact that the OCSD has released a modest number of

16 people and adopted (at least formally) some precautionary policies to address COVID-19,

17 large numbers of Medically-Vulnerable and Disability Subclass Members continue to be

18 exposed to the dangers of continued detention in the Orange County Jail. Their immediate

19

20

21 148 Exhibit JJ, Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 6, Declaration of Marc Stern at ¶¶ 9–10 (noting that release is “a critically important way to meaningfully
22 mitigate” the risks of harm to persons who are at high risk of serious illness or death, as 23 well as to support the broader community health infrastructure).

24 149 Id.

25 150 Exhibit H-A, Goldenson Decl. ¶ 48; see also, Exhibit I, Parker Decl. ¶¶ 32-34.

26

151 Matthew J. Akiyama et al, Flattening the Curve for Incarcerated Populations - Covid19 in Jails and Prisons, New England Journal of Medicine, (Apr. 2, 2020),

27 https://www.nejm.org/doi/full/10.1056/NEJMp2005687.

28

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1 release remains a necessary public health intervention.152 Further release will benefit those

2 remaining in the Jail and broader community by helping the Jail achieve the necessary goal

3 of ensuring proper social distancing to reduce transmission for all class members and the

4 wider public.153

5

71. Not only has Sheriff Barnes failed to release adequate numbers of medically-

6 vulnerable and disabled people from the jail, OCSD has continued to arrest individuals for

7 low-level offenses and unnecessarily expose them to infection by bringing them into the

8 Orange County Jail where an outbreak has already occurred. Due to decreased court

9 operations, these individuals could wait in the jail for days if not weeks before having an

10 opportunity to see a judge and be released. Maintaining this practice in the midst of the

11 COVID-19 crisis needlessly risks people’s lives and must be ended.

12

72. As a result of the Supreme Judicial Council’s March 30, 2020 Emergency

13 Order extending deadlines for criminal cases, many people recently charged with felonies

14 are being forced to languish in the jail for up to seven days before even being presented to

15 a magistrate judge.154

16

73. The Orange County Jail must respond to and manage the continued risk of

17 harm that the COVID-19 outbreak poses by following CDC155 and other public health

18 guidelines. This requires: (a) providing all incarcerated persons a six-foot radius or more

19 of distance between any other persons, including during meals, transportation, court

20 sessions, recreation, counts, and all other activities; (b) instituting a safety plan to manage

21

22 23 152 See Exhibit H-A, Goldenson Decl. ¶ 50.
153 Id. at ¶ 51. 24 154 Judicial Council of California Statewide Emergency Order by Hon. Tani G. Cantil-

25 Sakauye, Chief Justice of California and Chair of the Judicial Council (Mar. 30, 2020),

26

https://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com /262/files/20202/Statewide%20Order%20by%20the%20Chief%20Justice-

27 Chair%20of%20the%20Judicial%20Council%203-30-2020.pdf.

28 155 CDC, Interim Guidance, supra note 40.

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1 the COVID-19 outbreak in the Orange County Jail, in accordance with CDC guidelines;

2 (c) making readily available access to sanitation solutions, without charge, for the purposes

3 of cleaning cells, dormitories, laundry, and eating areas, including sufficient soap, and

4 lifting any ban on alcohol-based hygiene supplies (e.g., hand sanitizer, cleaning wipes); (d)

5 providing appropriate COVID-19 testing for all class members, jail staff, and visitors; (e)

6 waiving all medical co-pays for those experiencing COVID-19-like symptoms; and (f)

7 waiving all charges for medical grievances during the COVID-19 outbreak; (g)

8 quarantining all confirmed or suspected cases of COVID-19 without resorting to cohorting,

9 if possible.156

10

E. Orange County’s Policies, Practices, and Procedures in the Face of

11

COVID-19 Violate the ADA and the Rehabilitation Act.

12

74. Sheriff Barnes’ and Orange County’s actions and inactions in the face of

13 COVID-19 constitute disability discrimination. The Disability Subclasses include

14 everyone in the Medically-Vulnerable Subclasses who is vulnerable because of a disability,

15 as defined under federal law. This includes everyone in the Medically-Vulnerable

16 Subclasses except those vulnerable solely because of age or pregnancy status. All other

17 conditions that increase risk for COVID-19 complications or death—including lung

18 conditions, asthma, heart conditions, diabetes, kidney disease, liver disease, HIV, immune

19 dysfunction, autoimmune disorders, cancer treatment, and history of organ or bone marrow

20 transplantation—are disabilities under federal disability rights laws. People in the Orange

21 County Jail who have any of these conditions are medically-vulnerable people with

22 disabilities protected by the ADA and the Rehabilitation Act, in addition to being protected

23 by the constitutional provisions that protect all medically-vulnerable subclass members.

24 By continuing to detain members of the Disability Subclass, Defendants’ policies and

25 practices violate the ADA and the Rehabilitation Act.

26

27

28 156 See Exhibit H-A, Goldenson Decl. ¶¶ 38, 40.

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1

75. The ADA and the Rehabilitation Act require all covered entities to provide

2 reasonable modifications in their policies, practices, and procedures in order to give people

3 with disabilities an equal opportunity to benefit from the entity’s programs, services, and

4 activities. Orange County is a covered entity under these laws. Orange County Jail has

5 failed to make modifications to ensure that high-risk people with disabilities can avoid

6 contracting—and possibly dying from—COVID 19. Release of the Disability Subclasses

7 is the most appropriate modification of the jail’s program. Absent that, the jail must

8 implement modifications to protect Disabled Subclass members during incarceration,

9 including implementing meaningful social distancing in compliance with CDC guidelines,

10 ensuring full use of PPE, regular testing, and complete quarantine of people who test

11 positive. The ADA and the Rehabilitation Act also prohibit covered entities from using

12 methods of administration that defeat or impair the accomplishment of the objectives of

13 the public entity’s program. For pre-trial detainees, the jail’s main purpose and objectives

14 are to provide required safety and health services while ensuring an individual’s

15 appearance at arraignment and trial. A person who is sickened, unconscious, or killed by

16 COVID-19 will be unable to make such an appearance. By setting up a system where mass 17 infection and resulting harm and death will disproportionately fall on people with

18 disabilities, the jail has failed to establish methods of administration that do not

19 discriminate against people with disabilities.

20

76. As a result of the Orange County Jail’s failures to make reasonable

21 modifications, including release, and its failure to establish a non-discriminatory method

22 of administering its program, people with disabilities are being denied an equal opportunity

23 to participate in the adjudication of their cases and are denied the reasonable modifications

24 they may need to survive this pandemic.

25

F. Plaintiffs Have Exhausted Administrative Remedies.

26

27

77. Each of the Named Plaintiffs timely filed administrative grievances with the

28 Jail prior to filing suit that conformed to the requirements of OCSD Policy Section 1600.5

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1 et seq., and exhausted such administrative remedies as were available within the meaning

2 of 42 U.S.C. § 1997e(a).

3

4

V. CLASS ACTION ALLEGATIONS

5

78. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil

6 Procedure on behalf of themselves and a class of similarly situated individuals.

7

79. Plaintiffs Melissa Ahlman, Daniel Kauwe and Michael Seif seek to represent

8 a class of all current and future detainees in pre-trial custody at the Orange County Jail,

9 including alleged violations of probation or parole, (“Pre-trial Class”), including a subclass

10 of all persons who, by reason of age or medical condition, the CDC has identified as

11 particularly vulnerable to injury or death if they were to contract COVID-19 (“Medically-

12 Vulnerable Pre-trial Subclass”), and a subclass of all persons within the Medically-

13 Vulnerable Pre-trial Subclass who are vulnerable because of a disability as defined in

14 federal law (“Disability Pre-trial Subclass”). Plaintiffs Daniel Kauwe and Michael Seif are

15 also representatives and members of the Medically-Vulnerable Pre-trial Subclass and the

16 Disability Pre-trial Subclass.

17

80. Plaintiffs Javier Esparza, Pedro Bonilla, Cynthia Campbell, Monique

18 Castillo, Mark Trace, Cecibel Caridad Ortiz and Don Wagner seek to represent a class of

19 all current and future detainees in post-conviction custody, including those serving a term

20 of incarceration pursuant to an adjudicated violation of probation or parole, at the Orange

21 County Jail (“Post-conviction Class”), including a subclass of persons who, by reason of

22 age or medical condition, are particularly vulnerable to injury or death if they were to

23 contract COVID-19 (“Medically-Vulnerable Post-conviction Subclass”), and a subclass of

24 all persons within the Medically-Vulnerable Post-conviction Subclass who are vulnerable

25 because of a disability as defined in federal law (“Disability Post-conviction Subclass”).

26 Plaintiffs Pedro Bonilla, Cynthia Campbell, Monique Castillo, Mark Trace, Cecibel

27 Caridad Ortiz, Don Wagner are also representatives and members of the Medically-

28 Vulnerable Post-conviction Subclass and the Disability Post-conviction Subclass.

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1

81. The “Medically-Vulnerable” subclasses are defined as all current and future

2 persons held at the jail over the age of 55, as well as all current and future persons held at

3 the Orange County Jail of any age who experience (a) lung disease, including asthma,

4 chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic

5 conditions associated with impaired lung function; (b) heart disease, such as congenital

6 heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or

7 kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine

8 disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from

9 cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication,

10 or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i)

11 inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or

12 (l) a current or recent (last two weeks) pregnancy.

13

82. The “Disability” subclasses are defined as all current and future members of

14 the Medically-Vulnerable Subclasses who are vulnerable because of a disability as defined

15 under federal disability rights laws. The Disability Subclasses include all members of the

16 Medically-Vulnerable Subclasses except those who are vulnerable solely by reason of age

17 or current or recent pregnancy. People with all other conditions listed in the preceding

18 paragraph are people with disabilities and members of the Disability Subclasses.

19

83. This action has been brought and may properly be maintained as a class action

20 under federal law. It satisfies the numerosity, commonality, typicality, and adequacy

21 requirements for maintaining a class action under Fed. R. Civ. P. 23(a).

22

84. Joinder is impracticable because (1) the classes and subclasses are numerous;

23 (2) the classes and subclasses include future members, and (3) the classes and subclass

24 members are incarcerated, rendering their ability to institute individual lawsuits limited.

25

85. Based on available information, there are at least 40 people in the proposed

26 Pre-trial Class, the proposed Post-Conviction Class, and each proposed subclass. Everyone

27 in the Orange County Jail is a proposed class member. There are approximately 3,336

28

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1 individuals currently incarcerated in the Orange County Jail.157 An estimated 40% of the

2 Pre-trial and Post-conviction Classes would be expected to be members of the Disability

3 subclasses, with an even greater number being a part of each Medically-Vulnerable

4 Subclass.158

5

86. Common questions of law and fact exist as to all members of the proposed

6 classes: all are at unreasonable risk of serious harm from contracting COVID-19 due to the

7 conditions in the Orange County Jail and Defendants’ failure to take reasonable measures

8 to assure their safety from the disease, and all have a right to receive adequate COVID-19

9 prevention, testing, and treatment.

10

87. Questions of fact common to all proposed class members include whether the

11 conditions in the Orange County Jail expose them to heightened risk of contracting

12 COVID-19, and whether social distancing is possible with the current jail population.

13 Questions common to all members of the subclasses include whether the conditions in the

14 Orange County Jail expose them to heightened risk of serious illness, injury, or death and

15 whether the jail’s policies and practices discriminate against people with disabilities in

16 violation of federal disability rights laws. Questions of law common to all proposed class

17 and subclass members include what relief is necessary to mitigate the risks posed by their

18 confinement in the Orange County Jail.

19

88. Plaintiffs’ claims are typical of the class and the subclass members’ claims.

20 Defendants have placed them at significant risk of harm by failing to take appropriate steps

21 to address the risk of contracting, and being rendered seriously ill or injured by, COVID-

22

23

24 157 BSCC, Supplemental JPS Reporting Dashboard (last visited Apr. 29,

25 2020)https://app.smartsheet.com/b/publish?EQBCT=82b29a92ea9a4a0ea7aa480f1287e1

26 37.

27

158 U.S. Department of Justice, Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-2012, https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf (39.9% of

28 people in jail have a chronic conditions).

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1 19 in the Orange County Jail. Plaintiffs, like every person in the Jail, face heightened risk

2 of contracting COVID-19 if they are not adequately protected by Defendants.

3

89. Named Plaintiffs have the requisite personal interest in the outcome of this

4 action and will fairly and adequately protect the interests of the class. Plaintiffs have no

5 interests adverse to the interests of the proposed class. Plaintiffs retained pro bono counsel

6 with experience and success in the prosecution of civil rights litigation. Counsel for

7 Plaintiffs know of no conflicts among proposed class members or between counsel and

8 proposed class members.

9

90. Defendants have acted on grounds generally applicable to all proposed class

10 members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek

11 class certification under Rule 23(b)(2).

12

91. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because

13 prosecuting separate actions would create a risk of inconsistent or varying adjudications

14 with respect to individual class members that would establish incompatible standards of

15 conduct for the party opposing the proposed classes.

16

VI. ARGUMENT

17

18

A. Plaintiffs’ Incarceration Amidst the Current COVID-19 Outbreak in

the Orange County Jail Violates their Right to Constitutional

19

Conditions of Confinement.

20

92. It is well-settled that, under the Eighth and Fourteenth Amendments, jail

21 officials have a constitutional obligation to keep detainees safe and to address their medical

22 needs. See DeShaney v. Winnebago Cty Dept. of Soc. Servs., 489 U.S. 189, 200 (1989) 23 (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s

24 liberty that it renders him unable to care for himself, and at the same time fails to provide

25 for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable

26 safety—it transgresses the substantive limits on state action set by the Eighth Amendment

27 and the Due Process Clause.” ); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (the state 28 has an “unquestioned duty to provide . . . adequate . . . medical care” for detained persons);

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Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 48 of 73 Page ID #:1600

1 Wilson v. Seiter, 501 U.S. 294, 300 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976);

2 Brown v. Plata, 563 U.S. 493, 531-32 (2011); Farmer v. Brennan, 511 U.S. 825, 834

3 (1994) (remanding for determination of whether correctional officer violated Eighth

4 Amendment by failing to prevent “a substantial risk of serious harm”).159

5

93. This obligation requires jail officials, like Sheriff Barnes, to protect detainees

6 from dangerous infectious diseases like COVID-19. This obligation to protect detainees

7 exists before any incarcerated people test positive for the virus and before an outbreak

8 begins. Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment

9 protects against future harm to inmates is not a novel proposition. . . . It would be odd to

10 deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in

11 their prison on the ground that nothing yet had happened to them”); see also Farmer, 511

12 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and

13 foreclosed their access to outside aid, the government and its officials are not free to let the

14 state of nature take its course.”).

15

94. Acting fast is imperative. Before a detainee shows symptoms, they will have

16 almost certainly have already infected many others, who may, in turn, have spread it

17 further.160

18

19 159 Plaintiffs and Class Members are both pre-trial and post-conviction detainees. The

20 Fourteenth Amendment’s Due Process Clause governs conditions-of-confinement claims

21

like these for pre-trial detainees, while the Eighth Amendment governs post-conviction detainees. While it is clear that pre-trial detainees are presumed innocent and therefore

22 merit greater protection, see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979), the distinction

23

is irrelevant here: the harms of actual and potential COVID contraction alleged herein clearly satisfy the Eighth Amendment’s more restrictive standard.

24 160 CDC, Symptoms of Coronavirus, (last visited Apr. 20, 2020),

25 https://www.cdc.gov/coronavirus/2019-ncov/symptoms-

26

testing/symptoms.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavi rus%2F2019-ncov%2Fabout%2Fsymptoms.html (noting a 2-14 day incubation period for

27 COVID-19).

28

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1

95. Jail officials violate their affirmative obligations to keep incarcerated people

2 safe by showing “deliberate indifference” to a substantial risk of serious harm. Wilson,

3 501 U.S. at 303.161 Corrections officials are deliberately indifferent when they “ignore a

4 condition of confinement that is sure or very likely to cause serious illness and needless

5 suffering [in] the next week or month or year,” even when “the complaining inmate shows

6 no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a

7 cause of action . . . by alleging that [corrections officials] have, with deliberate indifference,

8 exposed him to [conditions] that pose an unreasonable risk of serious damage to his future

9 health”) Id. at 35 (emphasis added); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002)

10 (citing Farmer, 511 U.S. at 842) (court “may infer the existence of [deliberate indifference]

11 from the fact that the risk of harm is obvious”); Foster v. Runnels, 554 F.3d 807, 812 (9th

12 Cir. 2009) (finding that depriving an inmate of 16 meals over 23 days was a “sufficiently

13 serious” violation of the Eighth Amendment). Under the Eighth Amendment, an official

14 is deliberately indifferent if “he knows that inmates face a substantial risk of serious harm

15 and disregards that risk by failing to take reasonable measures to abate it.” Farmer v.

16 Brennan, 511 U.S. 825, 847 (1994). For pretrial detainees, the inquiry is a purely objective 17 one, looking to the following elements and asking whether:

18

(i) the defendant made an intentional decision with respect to the

19

conditions under which the plaintiff was confined; (ii) those

20

conditions put the plaintiff at substantial risk of suffering serious

21

22

161 The Eighth Amendment sets a floor of “deliberate indifference,” while the Fourteenth Amendment provides additional protections. Youngberg v. Romeo, 457 U.S. 307, 315-16

23 (1982) (“If it is cruel and unusual punishment to hold convicted criminals in unsafe

24

conditions, it must be unconstitutional to confine the involuntarily committed--who maybe not be punished at all--in unsafe conditions”); Young v. King Cty., No. 02-cv-35181, 2003

25 WL 21675319, at *2 (9th Cir. July 17, 2003) (“Equal protection does not allow pretrial

26

detainees to be unjustifiably held in conditions worse than those under which convicted prisoners are held.”). For the purposes of this request for expedited relief, plaintiffs will

27 demonstrate that the sheriff’s actions violate the lower standard of deliberate indifference.

28

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46

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 50 of 73 Page ID #:1602

1

harm; (iii) the defendant did not take reasonable available

2

measures to abate that risk, even though a reasonable official in

the circumstances would have appreciated the high degree of risk

3

involved--making the consequences of the defendant’s conduct

4

obvious; and (iv) by not taking such measures, the defendant

caused the plaintiff’s injuries.162

5

6

96. This is exactly what corrections officials are doing in Orange County with

7 respect to COVID-19. Despite knowledge of the risks, they intentionally continue to

8 incarcerate Class Members, including Medically-Vulnerable Subclass Members, in

9 circumstances that do not comply with public health recommendations and expose them to

10 unacceptably high levels of risk. The conditions of confinement place the Class Members

11 at substantial risk of contracting COVID-19. The Defendants have not taken available

12 mitigation measures, even though they must appreciate the obvious consequences of their

13 conduct.163 Jail officials were living under one of the nation's strictest stay-at-home orders

14 for over five weeks;164 the risk COVID-19 poses to the community, including Class

15 Members, is obvious. By failing to transfer Medically-Vulnerable Subclass Members,

16 failing to ensure social distancing, and failing to implement the necessary distancing and

17 hygiene measures, the Defendants injure Plaintiffs and Class Members by putting them at

18 significant risk of COVID-19. Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014) (“[W]e

19 have repeatedly recognized that prison officials are constitutionally prohibited from being

20

21

22

23 162 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).

24 163 Jeremy B. White, Newsom Orders All 40M Californians to Stay Home in Nation’s

25

Strictest

State

Lockdown,

Politico

(Mar.

19,

2020),

https://www.politico.com/states/california/story/2020/03/19/newsom-orders-all-40m-

26 californians-to-stay-home-in-nations-strictest-state-lockdown-1268248.

27 164 Id.

28

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47

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 51 of 73 Page ID #:1603

1 deliberately indifferent to policies and practices that expose inmates to a substantial risk of

2 serious harm.”).165

3

97. Defendants are well aware of the risks posed by their practices, as they have

4 repeatedly been warned of these risks, including by Sheriff Barnes’s own deputies. In an

5 April 27 letter, Charles G. Barfield, General Manager of the Orange County Employees

6 Association, demanded that Orange County provide significantly more substantial PPE for

7 jail staff. Barfield specifically noted inadequate supplies of face masks, eye protection,

8 respirators, and isolation gowns. He further demanded that the County provide staff with

9 free COVID-19 testing “in light of the significant COVID-19 outbreak in the jails.”166 On

10 March 12, 2020, Sheriff Barnes received a letter from the ACLU of Southern California

11 regarding the risks of COVID-19 infections and urging him to adopt policies to address

12 these risks.167 On March 17, 2020, Sheriff Barnes received a letter from numerous local

13 organizations urging him to take action.168 On March 25, 2020, Sheriff Barnes received a

14 letter from the Association of Orange County Deputy Sheriffs asking him to take more

15 steps to protect staff from COVID-19.169 On April 6, 2020, Sheriff Barnes received another

16

17 165 Diane Solis, Immigration Detention Center in North Texas Erupts in COVID-19 Cases,

18 Dallas News (Apr. 21, 2020), https://www.dallasnews.com/news/public-

19

health/2020/04/20/immigrant-detention-center-in-alvarado-erupts-in-covid-19-cases/ (“The evidence suggests system-wide inaction that goes beyond a mere ‘difference of

20 medical opinion or negligence.’”).

21 166 Exhibit KK, Letter from Charles G. Barfield, General Manager, Orange County Employees Association to Frank Kim, County Executive Officer (Apr. 27, 2020).
22 167 Exhibit LL, Letter from Jacob Reisberg and Daisy Ramirez, ACLU of Southern 23 California, to Sheriff-Coroner Donald Barnes, Re: COVID-19 Policy in Orange County

24 Jails (Mar. 12, 2020).

25

168 Exhibit MM, Letter from Transforming Justice, et al., to Sheriff Don Barnes, et al., Re: COVID-19 Containment in Orange County Jails and Courthouses (Mar. 17, 2020).

26 169 Exhibit NN, Letter from Tom Dominguez, Ass’n of Orange County Deputy Sheriffs,

27 to Sheriff Don Barnes (Mar. 25, 2020).

28

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1 letter from numerous local organizations urging him to act immediately to release more

2 people from custody.170

3

98. For medically vulnerable and disabled individuals, their immediate transfer

4 out of the Jail is necessary. COVID-19 is “sure or very likely to cause serious illness” . See

5 supra ¶¶48-65. Here, the harmful “condition of confinement” is the confinement itself. In

6 the face of a disease with a lengthy incubation period and a high rate of contagion, there

7 are no mitigation efforts that can be undertaken that will adequately protect Medically

8 Vulnerable and Disabled detainees more than transferring them out of the jail.171 In

9 addition to immediately transferring, the Medically-Vulnerable Subclass Members, the jail

10 must implement the CDC’s guidance on preventing disease spread and ensure social

11 distancing. Transferring individuals out of the Jail to protect their health is not a “prisoner

12 release order” under the Prison Litigation Reform Act. See, e.g., Plata v. Brown, 427 F.

13 Supp. 3d 1211, 1222-24 (N.D. Cal. 2013) (order transferring medically vulnerable

14 prisoners out of two prisons due to risk of coccidioidomycosis (Valley Fever) was not a

15 prisoner release order); Reaves v. Dep't of Correction, 404 F. Supp. 3d 520, 522-25 (D.

16 Mass. 2019) (order transferring prisoner with quadriplegia to outside treatment facility was

17 not a prisoner release order).

18

99. Failure to transfer at all Medically-Vulnerable Subclass Members and to

19 implement these public health recommendations, including social distancing,172 constitutes

20 deliberate indifference. See, e.g., Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir.

21

22 170 Exhibit OO, Letter from Transforming Justice Orange County, et al., to Sheriff Don 23 Barnes, et al., Re: COVID-19 in Orange County Jails (Apr. 6, 2020).

24 171 Exhibit I, Parker Decl. ¶¶ 32-34; see also, Exhibit H, Goldenson Decl. ¶ 48.

25 172 “Lack of resources is not a defense to a claim for prospective relief because prison

26

officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations.” Peralta v. Dillard, 744 F.3d 1076, 1083 (9th

27 Cir. 2014).

28

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49

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 53 of 73 Page ID #:1605

1 1996) (“even where a State may not want to subject a detainee to inhumane conditions of

2 confinement or abusive jail practices, its intent to do so is nevertheless presumed when it

3 incarcerates the detainee in the face of such known conditions and practices.”); Wilson v.

4 Williams, No. 20-cv-794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) (ordering

5 enlargement173 of medically vulnerable prisoners after finding that the prison’s failure to

6 separate “inmates at least six feet apart, despite clear CDC guidance for some time that

7 such measures are necessary to stop the spread and save lives” constitutes deliberate

8 indifference).174

9

100. Relatedly, pre-trial detainees have a constitutional right to pre-trial

10 confinement that does not amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979)

11 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication

12 of guilt in accordance with due process of law.”).175 Punishment is established if the jailer’s

13

14 173 Enlargement is a power available to courts in habeas actions that permit it to “‘enlarge’

15

the custody of a defendant” by altering the place of custody. Wilson, 2020 WL 1940882 at *4. In Wilson, the district court ordered the defendant Bureau of Prisons to transfer the

16 medically vulnerable prisoners out of custody by evaluating their transfer to home release,

17

parole or community supervision, or if necessary, another BOP facility where social distancing could be accomplished. Id., at *11.

18 174 See also Public Health Experts’ Declarations; CDC, Interim Guidance, supra note 40

19 (recommending cleaning and disinfecting surfaces several times a day, providing no cost

20 personal hygiene items, and implementing social distancing).

21

175 Santana v. Collazo, 714 F.2d 1172, 1180 (1st Cir. 1983) (“For an individual not convicted of a crime, however, restrictions on his liberty beyond his initial incarceration

22 must be reasonably related to some legitimate government objective—of rehabilitation,

23

safety or internal order and security.”); Lareau v. Manson, 651 F.2d 96, 104 (2d Cir. 1981) (“The only conceivable purpose overcrowding in the HCCC serves is to further the state's

24 interest in housing more prisoners without creating more prison space. This basically

25

economic motive cannot lawfully excuse the imposition on the presumptively innocent of genuine privations and hardship over any substantial period of time.”); Vella v. State of

26 Va., 805 F.2d 394, 394 (4th Cir. 1986) (allowing pre-trial detainee to prove allegations

27

establishing conditions as punishment) (“Nor can we say on the current state of the record that it is beyond doubt that Vella can prove no set of facts entitling him to relief.”); Parker

28

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50

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 54 of 73 Page ID #:1606

1 conduct is not rationally related to, or is excessive in relation to, a legitimate, nonpunitive

2 government purpose. Id. at 561; Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74

3 (2015).

4

101. Both elements are satisfied here. Even if the jail’s current lack of social

5 distancing, inadequate testing, lack of hygiene and PPE, and lack of quarantining may serve

6 legitimate, nonpunitive interests in normal times, those procedures are now exposing

7 people to potentially lethal risks in the Orange County Jail.176 See Demery v. Arpaio, 378

8 F.3d 1020, 1030 (9th Cir. 2004) (“Nothing in Bell requires that, to be punishment, a harm

9 must be independently cognizable as a separate constitutional violation.”). “[T]o constitute

10 punishment, the harm or disability caused by the government’s action must either

11 significantly exceed, or be independent of, the inherent discomforts of confinement.” Id.

12 Ongoing and increasing risk of death from a serious respiratory illness exceeds and is

13 independent of “the inherent discomforts of confinement.” Id. Continuing to detain

14 Plaintiffs and putative class members in these extremely dangerous conditions is not

15 rationally related to goals of health, safety, or even cost efficiency, and is excessive in

16 relation to those goals. For these reasons, the California Judicial Council has issued

17 advisories encouraging state courts to increase releases from jails, and the California

18

19

20

21

22 v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (ordering evidentiary hearing on whether

23

transfer to more violent wing was punitive); Smith v. Dart, 803 F.3d 304, 312 (7th Cir. 2015) (allegation that pre-trial detainee’s “[f]ood is well below nutritional value” sufficient

24 to survive motion to dismiss on claim that conditions of confinement amounted to

25

punishment under Fourteenth Amendment); White v. Monohan, 326 Fed. Appx. 385, 388 (7th Cir. 2009) (allegations that bug bites left sores and injuries were sufficient to state a

26 claim).

27 176 Exhibit I, Parker Decl. ¶¶ 32-34; see also, Exhibit H-A, Goldenson Decl. ¶ 48.

28

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1 Attorney General has clarified that county sheriffs have full statutory authority to release

2 people from custody in response to the COVID-19 emergency.177

3

102. Other Courts have granted similar relief. Memorandum and Order, Thakker

4 v. Doll, No. 20-CV-0480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020), Doc. No. 47 at 2

5 (categorically releasing petitioners who “suffer[] from chronic medical conditions and

6 face[] an imminent risk of death or serious injury if exposed to COVID-19”); Temporary

7 Restraining Order and Order to Show Cause, Castillo v. Barr, No. CV-20-00605 (TJH)

8 (AFM) (C.D. Cal. Mar. 27, 2020), Doc. No. 32 at 10 (releasing two ICE detainees where

9 they were not “kept at least six feet apart from others at all times.”); Doe v. Barr, No. 20-

10 cv-02141-LB, 2020 WL 1820667, at *9 (N.D. Cal. 2020) (releasing an immigration

11 detainee with COVID-19 comorbidities because those in the jail “live in close quarters,

12 cannot practice social distancing, do not have masks, and do not have access to adequate

13 disinfecting and cleaning supplies.”); Memorandum and Order, Hope v. Doll, No. 1:20-cv-

14 562 (M.D. Pa. Apr. 7, 2020) (releasing 22 people and nothing that staff “do not reliably

15 wear gloves and masks[,] . . . temperature check are infrequently conducted,” and that cell

16 blocks were not cleaned to prevent spread); Ortuño v. Jennings, No. 20-CV-02064-MMC,

17 2020 WL 1701724, at *4 (N.D. Cal. Apr. 8, 2020) (releasing three ICE detainees because

18 people in the jail “cannot practice meaningful social distancing” and “have not been

19 provided with masks.”); Minute Order in Chambers, Gray v. City. of Riverside, No. 13-

20

21 177 See Advisory from California Chief Justice Tani Cantil-Sakauye to Presiding Judges

22 and Court Executive Officers of the California Courts (Mar. 20, 2020),

23

https://newsroom.courts.ca.gov/news/california-chief-justice-issues-second-advisory-onemergency-relief-measures (encouraging the state’s superior courts to, among other things:

24 “[c]onsider a defendant’s existing health conditions, and conditions existing at the

25

anticipated place of confinement, in setting conditions of custody for adult or juvenile defendants”; “[i]dentify detainees with less than 60 days in custody to permit early release,

26 with or without supervision or community-based treatment.”); Attorney General of

27

California, Information Bulletin: COVID-19 and Statutory Authority Under Government

Code

Section

8658

(Apr.

14,

2020),

28 https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/2020-dle-05.pdf?.

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52

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 56 of 73 Page ID #:1608

1 CV-00444 (C.D. Cal. Apr. 14, 2020), Doc. No. 191 (releasing defendant where government

2 “failed to demonstrate that it is currently taking adequate precautions to protect the health

3 of the prisoners in the county jails.”); Cameron v. Bouchard, No. 20-cv-10494, 2020 WL

4 1929876, at *2 (E.D. Mich. Apr. 17, 2020) (“It cannot be disputed that COVID-19 poses a

5 serious health risk to Plaintiffs and the putative class.”).

6

B. The ADA and Rehabilitation Act Mandate Release of Disabled Subclasses

7

Amidst the Current COVID-19 Outbreak.

8

103. Title II of the ADA requires that public entities refrain from discriminating

9 against qualified individuals on the basis of a disability. 42 U.S.C. § 12132. Section 504 10 of the Rehabilitation Act imposes parallel requirements on public entities. See Duvall v. 11 Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). In order to avoid disability 12 discrimination in the Orange County Jail in this public health emergency, the only 13 reasonable modification and nondiscriminatory method of administration is transfer of the 14 Disability Subclasses. Disability Subclass members should be transferred for the

15 constitutional reasons discussed above, because they are all members of the Medically16 Vulnerable Subclass. Disability Subclass members are also protected by federal disability 17 rights laws, which, like the Constitution, mandate release.

18

1. Plaintiffs in the Disability Subclasses and Defendants are Covered

19

by the ADA and Section 504.

20

104. Plaintiffs and Class Members in the Disability Subclasses are protected

21 people with disabilities under the ADA and Section 504. They are all medically vulnerable

22 to COVID-19 complications or death due to their disabilities. “Disability” is defined

23 broadly, to include, inter alia, a “physical or mental impairment that substantially limits

24 one or more major life activities.” 42 U.S.C. § 12102(1)(A). “Major life activity” is itself

25 broadly defined, and includes “the operation of a major bodily function,” such as “functions

26 of the immune system, normal cell growth . . . neurological, brain, respiratory, circulatory,

27 [or] endocrine” systems. 42 U.S.C. § 12102(2)(B). All plaintiffs and Class Members in

28

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53

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 57 of 73 Page ID #:1609

1 the Disability Subclasses have disabilities that substantially limit a major life activity or

2 major bodily function.178

3

105. Plaintiffs and Class Members are “qualified” for Defendants’ programs,

4 services, and activities, including adjudication of their cases; safe, constitutional living

5 conditions during confinement; and medical care and rehabilitative services to prepare for

6 reentry after release. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; 28 C.F.R. § Pt. 35, App.

7 B (“[T]itle II applies to anything a public entity does”).

8

106. Orange County is a “public entity” for purposes of the ADA, and is bound

9 to comply with Title II. 42 U.S.C. § 12131(B) (“public entity” includes “any department,

10 agency, special purpose district, or other instrumentality of a State or States or local

11 government”); see also Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).

12

2. Under the ADA and Section 504, the Orange County Jail has an

13

Affirmative Obligation to Ensure Equal and Equally Safe Access

14

to Programs, Services, and Activities and to Avoid Disability Discrimination Against Disabled Class Members.

15

107. In order to avoid disability discrimination, public entities have an affirmative

16 obligation to ensure that people with disabilities can participate in all of the entity’s

17 programs, benefits, and services on an equal and equally safe basis as people without

18 disabilities. 28 C.F.R. §§ 35.102(a), 35.130(a)-(b); Pierce v. D.C., 128 F. Supp. 3d 250,

19 266 (D.D.C. 2015) (“[B]ecause Congress was concerned that ‘[d]iscrimination against

20 [people with disabilities] was . . . most often the product, not of invidious animus, but rather

21 of thoughtlessness and indifference – of benign neglect[,]’ the express prohibitions against

22 disability-based discrimination in Section 504 and Title II include an affirmative obligation

23 to make benefits, services, and programs accessible to disabled people”); id. at 269

24

25 178 Several conditions within the disability subclasses are expressly identified in regulations

26 as presumptively covered disabilities. 28 C.F.R. § 35.108(d)(2)(iii) (“it should easily be

27

concluded” that “[c]ancer substantially limits normal cell growth . . . diabetes substantially limits endocrine function . . . epilepsy . . . substantially limits neurological function . . .

28 HIV infection substantially limits immune function.”).

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1 (“[N]othing in the disability discrimination statutes even remotely suggests that covered

2 entities have the option of being passive in their approach to disabled individuals as far as

3 the provision of accommodations is concerned.”). Public entities must avoid policies,

4 practices, criteria, or methods of administration that have the effect of excluding or

5 discriminating against persons with disabilities. 28 C.F.R. § 35.130(b)(3), (8).

6

108. These affirmative obligations include a requirement that public entities make

7 reasonable modifications to their policies, practices, or procedures where necessary to

8 avoid disability discrimination. 28 C.F.R. § 35.130(b)(7)(i). The ADA also prohibits

9 public entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the

10 effect of subjecting qualified individuals with disabilities to discrimination on the basis of

11 disability” or “[t]hat have the purpose or effect of defeating or substantially impairing

12 accomplishment of the objectives of the public entity’s program with respect to individuals

13 with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii).

14

3. Reasonable modifications, including transfer of the Disability

15

Subclasses, are required under the ADA and Section 504.

16

109. The Disability Subclasses are entitled to full constitutional protections, as

17 discussed supra, Section V, as well as reasonable modifications under disability rights laws

18 to ensure they can participate equally and with equal safety in Defendants’ programs,

19 services, and activities. Defendants’ programs, services, and activities include the safe

20 adjudication of pre-trial detainees’ pending criminal cases, and safe, constitutionally-

21 adequate care, medical treatment, and rehabilitative support during confinement to prepare 22 the person for a safe return to society at the end of their sentence. Disability Subclass 23 members cannot access these equally if they are severely ill, unconscious, or dead. Given

24 the fast-moving, life-threatening nature of the COVID-19 pandemic, immediate transfer is

25 the only reasonable modification.

26

110. With respect to the Disability Pre-trial Subclass, Defendants are violating the

27 ADA and Rehabilitation Act by failing to ensure that people incarcerated pre-trial have 28 equal access to the safe adjudication of their cases. Plaintiff Michael Seif and the Disability

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55

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1 Pre-Trial Subclass are being held for purely administrative, not punitive, purposes, and are

2 presumed innocent. Bell, 441 U.S. at 535. All members of the Disability Pre-trial Subclass

3 are at high risk of severe complications or death if they contract COVID-19. Orange

4 County and the Jail are in the midst of a widespread COVID-19 outbreak, whose scope is

5 still unknown.

6

111. The Disability Pre-trial Subclass members must be well enough to

7 communicate; must be conscious, and must be alive, in order to have an equal opportunity

8 to participate in the adjudication of their cases. Given the high risk of a widespread

9 COVID-19 outbreak in the Jail, and given this subclass’s high risk of being unable to

10 participate equally in their adjudication if they contract COVID-19, Defendants must

11 transfer this subclass as a reasonable modification to its administrative detention system to

12 ensure these class members an equal opportunity to participate in their criminal

13 proceedings.

14

112. Put another way, the jail’s current method of administration of its pre-trial

15 incarceration system—including taking no action to transfer people in light of COVID-19

16 or to adequately prevent or control the infection’s spread—has the effect of discriminating

17 against the Disability Pre-trial Subclass. This Subclass faces disproportionate risk of

18 serious illness, hospitalization, or death from COVID-19, all of which exclude them from

19 participation in the adjudication of their cases on an equal basis as nondisabled people.

20 Transfer is necessary to ensure equal access to their trials.

21

113. With respect to all Disability Subclass members, Defendants are violating the

22 ADA and the Rehabilitation Act by failing to ensure that disabled detainees—pre-trial and

23 post-conviction—have an equal opportunity to participate in the Jail’s programs, services,

24 and activities, including adequate medical and mental health care, rehabilitative programs,

25 and ultimate release from confinement. The Disability Subclass members cannot equally

26 access the jail’s programs, services, or activities—including medical care, programming,

27 meals, yard time, and religious gatherings—because all such activities require being in

28 close quarters with other people, posing a disproportionate risk of infection and death. The

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

56

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1 Disability Subclass members cannot equally access the jail’s programs, services or

2 activities—including receipt of constitutionally adequate minimum care standards to

3 prevent avoidable death, rehabilitative programing, and, ultimately, release—if they are

4 severely ill, unconscious, or dead. Because of their high risk of these catastrophic

5 outcomes—which will inevitably result in exclusion from the jail’s programs—the jail

6 must transfer them as a reasonable modification, and to avoid unlawful discriminatory

7 methods of administration.

8

114. Transfer of the Disability Subclasses is a reasonable modification that is

9 consistent with the nature and purpose of the jail, and is not a fundamental alteration. Cf.

10 Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 1003 (E.D. Cal. 2009); Inmates of

11 Allegheny Cnty. Jail v. Peirce, 487 F. Supp. 638, 644 (W.D. Pa. 1980). Jails across the

12 country and the world are transferring to home confinement, or releasing people who are

13 particularly vulnerable to severe illness or death from the virus. Indeed, Sheriff Barnes has

14 already released many people as a result of COVID-19, but his actions thus far have left

15 out many people with disabilities for whom transfer is especially critical. Cf. Henrietta D.

16 v. Bloomberg, 331 F.3d 261, 281 (2d Cir. 2003) (“[t]he reasonableness of the modifications

17 that plaintiffs seek . . . is evidenced by the fact that virtually all are modifications that

18 defendants have long purported … to provide”) (quoting Henrietta D. v. Giuliani, 119 F.

19 Supp. 2d 181, 208 n.17 (E.D.N.Y. 2000)). Transfer is consistent with the jail’s purposes,

20 including administratively ensuring pre-trial detainees show up for court, and preparing

21 post-conviction detainees for safe, healthy release into their communities.179 Transfer is

22 the most effective and reasonable modification to ensure Disability Subclass members are

23 not subject to disability discrimination. If any Disability Subclass members are not

24 immediately transferred, the ADA and Rehabilitation Act require Defendants to implement

25

26 179 Orange County Sheriff’s Department, Correctional Programs,

27

https://www.ocsd.org/divisions/custody/inmate/correctional (last visited Apr. 28, 2020) (“Mission: To provide the inmate population . . . the opportunity for an effective,

28 rehabilitative experience following state and federal guidelines.”).

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1 reasonable modifications within the jail to reduce the risk of infection among the Disability

2 Subclass members.

3

4

VII. CLAIMS FOR RELIEF

5

FIRST CLAIM FOR RELIEF

6

Unconstitutional Conditions of Confinement in Violation of the Fourteenth

7

Amendment to the U.S. Constitution

8

42 U.S.C. § 1983

9

Pre-trial Class versus All Defendants

10

115. Plaintiffs incorporate by reference each of the preceding paragraphs and

11 allegations as if fully set forth herein.

12

116. Under the Fourteenth Amendment, corrections officials are required to

13 provide for the reasonable health and safety of persons in pre-trial custody. Youngberg,

14 457 U.S. at 315–16, 324 (the state has an “unquestioned duty” to “provide adequate . . .

15 medical care” for detained persons).

16

117. As part of the right, the government must provide people held pre-trial with

17 reasonable safety and address serious medical needs that arise in jail, under the same

18 objective deliberate indifference standard that applies to failure-to-protect claims brought

19 by people held pre-trial. Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018),

20 cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794 (2019). Regardless

21 of the subjective intent of Defendants, objective deliberate indifference to the serious risk

22 that COVID-19 poses to members of the Pre-trial Class, and particularly members of the

23 Medically-Vulnerable Pre-trial Subclass, violates this right.

24

118. The Orange County Jail has taken insufficient steps to comply with public

25 health guidelines to manage the outbreak of COVID-19 that it is currently facing, and it

26 must take further protective steps, including the release of some individuals, to provide for

27 the safety of the Pre-trial Class. Defendants’ actions and inactions result in the confinement

28

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58

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1 of members of the Pre-trial Class in a jail where they do not have the capacity to test for,

2 treat, or manage COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and

3 adequate medical care.

4

119. Accordingly, Defendants, as supervisors, direct participants, and policy

5 makers for Orange County and the Orange County Jail have violated the rights of the Pre-

6 trial Plaintiff Class under the Fourteenth Amendment.

7

SECOND CLAIM FOR RELIEF

8 Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.

9

Constitution

10

42 U.S.C. § 1983

11

Pre-trial Class versus All Defendants

12

120. Plaintiffs incorporate by reference each of the preceding paragraphs and

13 allegations as if fully set forth herein.

14

121. Under the Fourteenth Amendment, persons in pre-trial custody have greater

15 due process protections than those convicted and therefore cannot be punished as part of

16 their detention. Bell, 441 U.S. at 535 n.16. Punishment is established if the jailer’s conduct

17 is either not rationally related to a legitimate, nonpunitive, government purpose or

18 excessive in relation to that purpose.

19

122. Even assuming that the Orange County Jail’s spacing and provision of

20 medical services inside the facility normally serves the legitimate, nonpunitive, purpose of

21 maintaining the health and safety of detained persons, the Orange County Jail has failed to

22 comply with public health guidelines to manage the outbreak of COVID-19. In fact, the

23 Jail has neither the capacity nor the ability to comply with public health guidelines to

24 manage the outbreak. Therefore, continuing to detain Pre-trial Class members without

25 making the Orange County Jail compliant with COVID-19-specific guidance from public

26 health experts is not rationally related to, and excessive in relation to, that purpose.

27

28

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59

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1

123. Accordingly, Defendants, as supervisors, direct participants, and policy

2 makers for Orange County and the Orange County Jail have violated the rights of the Pre-

3 trial Plaintiff Class under the Fourteenth Amendment.

4

THIRD CLAIM FOR RELIEF

5 Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment

6

to the U.S. Constitution

7

42 U.S.C. § 1983

8

Post-conviction Class versus All Defendants

9

124. Plaintiffs incorporate by reference each of the preceding paragraphs and

10 allegations as if fully set forth herein.

11

125. Under the Eighth Amendment, persons in carceral custody have a right to be

12 free from cruel and unusual punishment. As part of this right, the government must provide

13 incarcerated persons with reasonable safety and address serious medical needs that arise in

14 jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. Deliberate indifference

15 to the serious risk that COVID-19 poses to members of the Post-conviction class, and

16 particularly members of the Medically-Vulnerable Post-conviction Subclass, infringes on

17 the protection from cruel and unusual punishment. Defendants violate this right by

18 subjecting members of the Post-conviction Class to conditions of confinement that do not

19 ensure their safety and health.

20

126. The Orange County Jail has failed to comply with public health guidelines to

21 manage the outbreak of COVID-19. The Jail has neither the capacity nor the ability to

22 comply with public health guidelines to manage the outbreak and cannot provide for the

23 safety of the Post-conviction Class.

24

127. Defendants’ actions and inactions result in the confinement of members of

25 the Post-conviction Class in a jail where they do not have the capacity to test for, treat, or

26 manage COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate

27 medical care.

28

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1

128. By operating the Orange County Jail without the capacity to test for, treat, or

2 manage a COVID-19 outbreak, Defendants, as supervisors, direct participants, and policy

3 makers for Orange County and the Orange County Jail have violated the rights of the Post-

4 conviction Plaintiff Class under the Eighth Amendment.

5

FOURTH CLAIM FOR RELIEF

6

Discrimination on the Basis of Disability in Violation of Title II of the ADA

7

42 U.S.C. § 12131 et seq.

8

Pre-trial and Post-conviction Disability subclasses versus all Defendants

9

129. Plaintiffs incorporate by reference each of the preceding paragraphs and

10 allegations as if fully set forth herein.

11

130. Title II of the ADA requires that public entities refrain from discriminating

12 against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations

13 implementing Title II of the ADA require that public entities avoid unnecessary policies,

14 practices, criteria or methods of administration that have the effect of excluding or

15 discriminating against persons with disabilities in the entity’s programs, services, or

16 activities. 28 C.F.R. § 35.130(a), (b)(3), (b)(8). Further, a public entity must “make

17 reasonable modifications in policies, practices, or procedures when the modifications are

18 necessary to avoid discrimination on the basis of disability, unless the public entity can

19 demonstrate that making the modifications would fundamentally alter the nature of the

20 service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i).

21

131. Plaintiffs Daniel Kauwe, Michael Seif, Pedro Bonilla, Cynthia Campbell,

22 Monique Castillo, Mark Trace, Cecibel Caridad Ortiz and Don Wagner are individuals with

23 disabilities for purposes of the ADA. 42 U.S.C. § 12102. As people held in the Orange

24 County Jail, they are “qualified” for the programs, services, and activities being challenged

25 herein. 42 U.S.C. § 12131(2).

26

132. Defendants are violating Title II of the ADA by failing to make the reasonable

27 modifications necessary to ensure equal access to adjudication, jail services, and release

28 for people with disabilities who face high risk of complications or death in the event of

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

61

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1 COVID-19 infection. Defendants are further violating the ADA by employing methods of

2 administration (including a policy of non-release and non-transfer even in the face of

3 COVID-19) that tend to discriminate against people with disabilities by placing them at

4 heightened risk of severe illness and death.

5

FIFTH CLAIM FOR RELIEF

6

Discrimination on the Basis of Disability in Violation of Section 504 of the

7

Rehabilitation Act

8

29 U.S.C. § 794 et seq.

9

Pre-trial and Post-conviction Disability subclasses versus all Defendants

10

133. Plaintiffs incorporate by reference each of the preceding paragraphs and

11 allegations as if fully set forth herein.

12

134. Section 504 of the Rehabilitation Act states that “no otherwise qualified

13 individual with disability in the United States . . . shall, solely by reason of [] disability, be

14 excluded from the participation in, be denied the benefits of, or be subject to discrimination

15 under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

16 The regulations implementing Section 504 of the Rehabilitation Act require that entities

17 receiving federal financial assistance avoid unnecessary policies, practices criteria or

18 methods of administration that have the effect of discriminating against persons with

19 disabilities. 28 C.F.R. § 41.51(b)(3)(i).

20

135. Defendants receive “Federal financial assistance” within the meaning of 28

21 U.S.C. § 794(a).

22

136. Plaintiffs Daniel Kauwe, Michael Seif, Pedro Bonilla, Cynthia Campbell,

23 Monique Castillo, Mark Trace, Cecibel Caridad Ortiz and Don Wagner are individuals with

24 disabilities for the purposes of the Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. §

25 705(20)(B). As people held in the Orange County Jail, they are “qualified” for the

26 programs, services, and activities being challenged herein.

27

137. Defendants are violating section 504 of the Rehabilitation Act by failing to

28 make the reasonable modifications necessary to ensure equal access to adjudication, jail

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

62

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 66 of 73 Page ID #:1618

1 services, and release for people with disabilities who face high risk of complications or

2 death in the event of COVID-19 infection. Defendants are further violating the

3 Rehabilitation Act by employing methods of administration (including a policy of non-

4 release and non-transfer even in the face of COVID-19) that tend to discriminate against

5 people with disabilities by placing them at heightened risk of illness and death.

6

7

VIII. REQUEST FOR RELIEF

8

138. Plaintiffs incorporate by reference each of the preceding paragraphs and

9 allegations as if fully set forth herein.

10

139. Plaintiffs and Class Members respectfully request that the Court order the

11 following:

12

1. Certification of this Complaint as a Class Action;

13

2. A permanent injunction requiring Defendants to immediately adopt mitigation

14

efforts to protect all Class Members, including but not necessarily limited to:

15

a. Provide adequate spacing of six feet or more between incarcerated

16

people so that social distancing can be accomplished in accordance with

17

CDC guidelines;

18

b. Effectively communicate to all incarcerated people, including low-

19

literacy and non-English-speaking people, sufficient information about

20

COVID-19, measures taken to reduce the risk of transmission, and any

21

changes in policies or practices to reasonably ensure that individuals

22

are able to take precautions to prevent infection;

23

c. Ensure that each incarcerated person receives, free of charge, an

24

individual supply of hand soap and paper towels sufficient to allow

25

frequent hand washing and drying each day; an adequate supply of

26

clean implements for cleaning such as sponges and brushes and

27

28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

63

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 67 of 73 Page ID #:1619

1

disinfectant hand wipes or disinfectant products effective against the

2

virus that causes COVID-19 for daily cleanings;

3

d. Provide sufficient disinfecting supplies, free of charge, so incarcerated

4

people can clean high-touch areas or items (including, but not limited

5

to, phones and headphones) between each use;

6

e. Ensure that all incarcerated people have access to hand sanitizer

7

containing at least 60% alcohol;

8

f. Provide access to daily showers and daily access to clean laundry,

9

including clean personal towels and washrags after each shower;

10

g. Require that all Jail staff wear personal protective equipment, including

11

CDC-recommended surgical masks, when interacting with any person

12

or when touching surfaces in cells or common areas;

13

h. Require that all Jail staff wash their hands, apply hand sanitizer

14

containing at least 60% alcohol, or change their gloves both before and

15

after interacting with any person or touching surfaces in cells or

16

common areas;

17

i. Offer universal testing to all detained individuals and staff and

18

implement contact tracing to appropriately quarantine and isolate

19

exposed individuals and confirmed cases;

20

j. Take the temperature of all class members, jail staff, and visitors daily

21

(with a functioning and properly operated and sanitized thermometer)

22

to identify potential COVID-19 infections;

23

k. Assess (through questioning) each incarcerated person daily to identify

24

potential COVID-19 infections;

25

l. Ensure that individuals identified as having COVID-19 or having been

26

exposed to COVID-19 receive adequate medical care and are properly

27

quarantined (without resorting to cohorting), in a non-punitive setting,

28

with continued access to showers, recreation, mental health services,

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

reading materials, phone and video visitation with loved ones,

2

communications with counsel, and personal property;

3

m. Respond to all emergency (as defined by the medical community)

4

requests for medical attention within an hour;

5

n. Provide adequate and balanced nutrition to all detained class members,

6

including class members with special medical or religious diets;

7

3. A permanent injunction, requiring Defendants to take the following further

8

actions:

9

a. Submit a plan for approval by the Court, overseen by a qualified public

10

health expert pursuant to Fed. R. Evid. 706, which outlines any further

11

mitigation efforts that will substantially reduce the risks of COVID-19

12

infection for individuals housed in the Jail;

13 b. Submit a plan for approval by the Court, overseen by a qualified public
14 health expert pursuant to Fed. R. Evid. 706, which outlines any further
15 mitigation efforts that will enable Defendants to house the Medically-
16 Vulnerable and Disability Subclasses in a manner consistent with
17 federal law and, until such time as this plan is approved by the Court
18 and successfully implemented by Defendants:
19

20

i. Transfer for home confinement all individuals who are (1)

21

incarcerated solely due to their inability to afford a financial

22

condition of release; (2) incarcerated solely for technical

23

violations of probation or parole; or (3) serving convictions

24

for an offense listed on the California Judicial Council’s

25

zero bail order as appropriate for no bail; and

26

ii. Adopt a process to consider the transfer to home confinement

27

or alternative placements for all remaining Medically-

28

Vulnerable and Disabled Subclass Members.

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

65

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1

c. Report weekly on the population of persons in the Orange County Jail

2

who are Medically-Vulnerable and have disabilities as defined in this

3

action;

4

d. Conduct an evaluation of how many people the jail can house in a safe

5

manner consistent with public health guidance requiring all persons to

6

maintain six feet or more of space between them, including:

7

i. A description of the size of all jail cells, tanks, and dorm-style

8

housing, noting how many people can safely be housed in

9

each;

10

ii. The distance between beds in jail cells, tanks, and dorm-style

11

housing;

12

iii. The size and location of shared toilets and showers and the

13

number of people who use each at a time; and

14

iv. The size of each dayroom and the number of people who can

15

safely use each while maintaining six feet or more of space

16

between them.

17

e. Avoid booking individuals for any misdemeanor or felony offense

18

other than the exceptions set forth in Emergency rule 4(c) of the

19

California Rules of Court for which bail greater than $0 may be set; and

20

f. Follow the terms of the public health expert plan submitted pursuant to

21

Fed. R. Evid. 706 and the terms of the Medically Vulnerable and

22

Disability Subclasses plan.

23

4. A declaration that the Orange County Jail’s policies violate the Fourteenth

24

Amendment rights to reasonable safety and to be free from punishment prior

25

to conviction with respect to the Pre-trial Class;

26

27

28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

66

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1

5. A declaration that the Orange County Jail’s policies violate the Eighth

2

Amendment right against cruel and unusual punishment with respect to the

3

Post-Conviction Class;

4

6. A declaration that the Orange County Jail’s policies violate the Americans

5

with Disabilities Act and Section 504 of the Rehabilitation Act with respect

6

to both Disability Subclasses;

7

7. An award of Plaintiffs’ attorney fees and costs under 42 U.S.C. sec. 1988, 42

8

U.S.C. sec 12205, 29 U.S.C. sec. 794a and other applicable law; and

9

8. Any further relief this Court deems appropriate.

10

11

Respectfully submitted,

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

67

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 71 of 73 Page ID #:1623

1

/s/Cassandra Stubbs

/s/ Peter Eliasberg

/s/ Mitchell

/s/ John Washington

2 AMERICAN CIVIL AMERICAN CIVIL Kamin

John Washington

3

LIBERTIES UNION

LIBERTIES FUND Mitchell Kamin

OF SOUTHERN

C.A. Bar No.

C.A. Bar No. 315991

4 FOUNDATION

CALIFORNIA

202788

Schonbrun,

5

Cassandra Stubbs C.A. Bar No.

Peter Eliasberg C.A. Bar No.

Aaron Lewis C.A. Bar No.

Seplow, Harris, Hoffman & Zeldes

6 218849

189110

284244

LLP

7

Olivia Ensign

1313 W. Eighth St.

N.C. Bar No. 50689 Los Angeles, CA

Brittany Benjamin 11543 W. Olympic

C.A. Bar No.

Blvd.

8 Cristina Becker

90017

323968

Los Angeles, CA

9

N.C. Bar No. 46793 201 W. Main St.,

10 Suite 402, Durham,

COVINGTON & BURLING LLP 1999 Avenue of

90064 (310) 399-7040 jwashington@sshhl

11

NC 27701 cstubbs@aclu.org

12 ensign@aclu.or

the Stars Los Angeles, CA 90067-4643

aw.com

13 cbecker@aclu.org 14 Carl Takei

(424) 332-4800 s/ Paul Hoffman alewis@cov.com Paul Hoffman mkamin@cov.com C.A. Bar No.

15 C.A. Bar No. 256229
16 Somil Trivedi

bbenjamin@cov.co 71244

m

UNIVERSITY OF

CALIFORNIA,

17 D.C. Bar No. 1617967
18 Clara Spera

Stacey Grigsby D.C. Bar No. 491197

IRVINE SCHOOL OF LAW CIVIL RIGHTS

19 N.Y. Bar No. 5590229
20 AMERICAN CIVIL

Amia Trigg C.A. Bar No. 282890

LITIGATION CLINIC 401 E. Peltason

21 LIBERTIES UNION
22 FOUNDATION

COVINGTON & BURLING LLP One CityCenter

Dr., Suite 1000, Irvine, CA 92687

23 125 Broad Street, 18th Floor
24 New York, NY

850 Tenth Street NW Washington, DC

(949) 824-0066

25 10004

26

ctakei@aclu.org strivedi@aclu.org

20001 (202) 662-6000 sgrigsby@cov.com

27 cspera@aclu.org

atrigg@cov.com

28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

68

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 72 of 73 Page ID #:1624

1 Zoe Brennan-Krohn 2 C.A. Bar No.
324912 3 AMERICAN CIVIL 4 LIBERTIES
UNION 5 FOUNDATION 6 Disability Rights
Program 7 39 Drumm Street 8 San Francisco, CA
94111 9 (415)-343-0769 10 zbrennan11 krohn@aclu.org
12
13
14
15
16
17
18 19 ATTORNEYS FOR PLAINTIFFS
20 Dated: June 12, 2020 21
22
23
24
25
26
27
28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

69

Case 8:20-cv-00835-JGB-SHK Document 79 Filed 06/12/20 Page 73 of 73 Page ID #:1625

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 12th day of June 2020, I electronically transmitted the

3 foregoing document to the Clerk of Court using the ECF system for filing and transmittal

4 of a Notice of Electronic Filing to the following ECF registrants:

5

6

D Kevin Dunn Kayla Nicole Watson

7 Laura D Knapp

8

Rebecca Sorgen Leeds Office of the County Counsel

9 County of Orange

10

333 West Santa Ana Boulevard Suite 407 P O Box 1379

11 Santa Ana, CA 92702-1379

12

714-834-3300 Fax: 714-834-2359

13 Email: kevin.dunn@coco.ocgov.com

14

Email: kayla.watson@coco.ocgov.com Email: laura.knapp@coco.ocgov.com

15 Email: rebecca.leeds@coco.ocgov.com

16 Attorneys for Defendants

17

/s/ Mitchell Kamin

18

Mitchell Kamin

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

70

 
 8/10/2020

Search - Supreme Court of the United States

No. 20A19
Title:
Docketed: Lower Ct:
Case Numbers:
DATE Jul 21 2020
Jul 24 2020
Jul 30 2020
Aug 03 2020
Aug 05 2020

Search documents in this case:

Search

Don Barnes, Sheriff, Orange County, California, et al., Applicants v. Melissa Ahlman, et al. July 24, 2020 United States Court of Appeals for the Ninth Circuit (20-55568 20-55668)
PROCEEDINGS AND ORDERS Application (20A19) for a stay pending appeal, submitted to Justice Kagan. Main Document Other Proof of Service Response to application (20A19) requested by Justice Kagan, due Thursday, July 30, 2020, by 4 p.m. ET.
Response to application from respondents Melissa Ahlman, et al. filed. Main Document Proof of Service Reply of applicants Don Barnes, et al. filed. Reply Proof of Service Application (20A19) referred to the Court.

https://www.supremecourt.gov/search.aspx?ﬁlename=/docket/docketﬁles/html/public/20a19.html

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8/10/2020 Aug 05 2020

Search - Supreme Court of the United States
Application (20A19) granted by the Court. The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted, and the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. JUSTICE BREYER and JUSTICE KAGAN would deny the application. JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from the grant of stay. (Detached Opinion).

NAME

ADDRESS

Attorneys for Petitioners

Donald Kevin Dunn Counsel of Record

Office of Orange County Counsel 333 W. Santa Ana Blvd, Suite 407 Santa Ana, CA 92701

Party name: Don Barnes, et al.

kevin.dunn@coco.ocgov.com

Attorneys for Respondents
David Meir Zionts Counsel of Record

Covington & Burlington LLP 850 Tenth Street, NW Washington, DC 20001

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Party name: Melissa Ahlman, et al.

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 Case: 20-55568, 06/17/2020, ID: 11725446, DktEntry: 19-1, Page 1 of 12

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MELISSA AHLMAN; et al.,

No. 20-55568

FILED
JUN 17 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiffs-Appellees,
v.
DON BARNES, in his official capacity as Sheriff of Orange County, California; COUNTY OF ORANGE,

D.C. No. 8:20-cv-00835-JGB-SHK Central District of California, Santa Ana
ORDER

Defendants-Appellants.

Before: GRABER, WARDLAW, and R. NELSON, Circuit Judges. Defendants-Appellants Orange County and Sheriff Don Barnes (Defendants)
have filed a motion to stay the district court’s May 26, 2020, preliminary injunction order. We deny the motion to stay, but remand for the limited purpose of allowing the district court to consider whether changed circumstances justify modifying or dissolving the injunction.1
I. Plaintiffs-Appellees, putative classes and subclasses of pre-trial and posttrial inmates housed in four facilities at the Orange County Jail, filed this suit

1 On June 12, 2020, we issued an order denying the motion to stay and explaining that a written order giving the court’s reasoning would follow in due course. This order supplies that reasoning.

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alleging that Defendants failed to take adequate measures to prevent the spread of COVID-19 within the jail. They asserted Eighth Amendment, Fourteenth Amendment, and statutory claims, and sought a preliminary injunction requiring Defendants to implement specific “mitigation efforts” to prevent the spread of the virus.2
In the district court, Defendants argued that an injunction was unnecessary because they had already implemented each of the specific mitigation efforts Plaintiffs requested. In support, they proffered a sworn declaration from Commander Joseph Balicki of the Orange County Sheriff’s Department’s (OCSD) Custody Operations Command. Balicki attested under penalty of perjury that he had reviewed Plaintiffs’ complaint3 and that “OCSD ha[d], at a minimum, already implemented all of the mitigation efforts outlined in [their] request for relief.” (emphasis added). Balicki’s declaration made clear that the “mitigation efforts” he was referring to were those that were identified in the complaint’s “Request for
2 Plaintiffs also asked the district court to order the release of inmates who were medically vulnerable or had disabilities that could put them at particular risk of harm from COVID-19. The district court denied this request, concluding that a release of inmates was not necessary because any harm to these individuals could be mitigated by additional preventative measures within the jail. Plaintiffs have not appealed that denial.
3 Plaintiffs have since amended their complaint in the district court. All references in this order are to the original petition for habeas corpus and complaint, which was the operative complaint at the time the district court issued the preliminary injunction.
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Relief.” He cited Paragraph 138 of the complaint, where Plaintiffs listed each of their requested “mitigation efforts,” including, among other things, that Defendants “[p]rovide adequate spacing of six feet or more between incarcerated people so that social distancing can be accomplished in accordance with CDC guidelines;” “[e]nsure that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day;” “[e]nsure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;” and “[c]onduct immediate testing for anyone . . . displaying known symptoms of COVID-19.”
Although Defendants maintained that they were already voluntarily providing all of the relief sought in the complaint (other than a release of inmates), Plaintiffs produced evidence to the contrary. According to declarations from inmates at the jail, Defendants housed multiple inmates in the same room, with beds less than six feet apart; placed some inmates in overcrowded holding units; allowed quarantined inmates to use the same common spaces as the general population; failed to provide inmates with sufficient cleaning and hygiene supplies, including sufficient soap for hand-washing; and gave inmates cloth masks that, in some cases, were not replaced for weeks or were “made from blood-and[-]fecesstained sheets.” Inmates also reported that Defendants were not testing all individuals with suspected cases of COVID-19 and that on May 13, 2020—less
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than two weeks before the injunction issued—an inmate who was exhibiting COVID-19 symptoms was left in a “medical tank” with non-symptomatic inmates pending the results of his COVID-19 test.
The district court recognized that Plaintiffs’ evidence contradicted the declarations submitted by Commander Balicki and other OCSD officials. It resolved this factual conflict in favor of Plaintiffs, concluding that the detailed inmate declarations were more credible than the brief and general declarations of the OCSD officers, which “fail[ed] to explain with specificity how the [County’s] policies ha[d] been implemented and enforced and the degree of compliance.”
The district court also considered the results of COVID-19 testing within the jail. It noted that as of May 26, 2020—the day it issued its order—369 inmates had tested positive for COVID-19, an increase of more than 300 confirmed cases in a little over a month. And while the district court acknowledged that Defendants reported that 302 of those inmates had recovered, it explained that there were likely still 57 inmates4 who had contracted the virus within the previous two weeks.
After evaluating the evidence before it, the district court found, as a factual
4 The district court may have meant to say that there were 67 inmates who had likely contracted the virus within the previous two weeks—the difference between the 369 positive tests and the 302 recoveries. The arithmetical discrepancy is immaterial for our purposes.
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matter, that Defendants were “not complying meaningfully with the CDC Guidelines,” which it concluded “represent[ed] the floor, not the ceiling, of an adequate response to COVID-19 at the Jail, with at least 369 COVID-19 cases.” In light of this finding, the district court concluded that Plaintiffs had established (1) that they were likely to succeed on the merits of their claims, (2) that they were likely to face irreparable harm absent an injunction, and (3) that the balance of the equities and the public interest weighed in favor of injunctive relief. It issued an injunction directing Defendants to comply with fourteen requirements that were taken, essentially word-for-word, from Paragraph 138 of Plaintiffs’ complaint.
Defendants moved to stay the injunction pending appeal. The district court denied the motion, concluding, among other things, that Defendants could not establish irreparable injury because the injunction did nothing more than require them to implement the very same measures that Commander Balicki had specifically stated, under oath, had already been put in place. Defendants then appealed the grant of the preliminary injunction and asked us to grant a stay.
II. In determining whether to exercise our discretion to stay the injunction, we consider (1) whether Defendants have made “a strong showing of the likelihood of success on the merits;” (2) whether Defendants will be “irreparably injured absent a stay;” (3) “whether a stay will substantially injure other parties;” and (4) “where
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the public interest lies.” Doe #1 v. Trump, 957 F.3d 1050, 1058 (9th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 426 (2009)). “The first two factors are the most critical,” id. (cleaned up), and a showing of irreparable injury is an absolute prerequisite. “[I]f the petition has not made a certain threshold showing regarding irreparable harm . . . then a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors.” Id. (quoting Leiva-Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011) (per curiam)).
A. We begin with the issue of irreparable harm. Defendants argue that they will be irreparably harmed because the requirements imposed by the district court’s injunction are “impossible” to adhere to. In support, they have submitted a new declaration from Commander Balicki, who now asserts that “portions of the [injunction] require action that the Sheriff simply cannot comply with due to safety and security concerns for jail staff and inmates.” Defendants’ new position cannot be reconciled with Balicki’s sworn statement in the district court, which represented not only that Defendants were willing and able to implement each of the specific measures requested by Plaintiffs (and later incorporated into the injunction), but that they had in fact already implemented them. Nowhere in their papers have Defendants attempted to explain why the measures they assured the district court had already been taken have
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suddenly become impossible to carry out.5 “Self-inflicted wounds are not irreparable injury.” Al Otro Lado v. Wolf,
952 F.3d 999, 1008 (9th Cir. 2020) (cleaned up). An injunction cannot cause irreparable harm when it requires a party to do nothing more than what it maintained, under oath, it was already doing of its own volition. On these particular facts, where Defendants have advanced an argument that is diametrically opposed to their litigating position in the district court, they cannot show irreparable harm. Either Defendants were already willingly complying with the requirements of the injunction before it issued, in which case they will suffer no irreparable injury from it, or they misrepresented the nature of their response to COVID-19 in the district court, in which case they are not entitled to discretionary relief in the form of a stay. See Doe #1, 957 F.3d at 1058; see also Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73 (1926) (explaining that a stay is “not a matter of right” and that “[t]he propriety of its issue is dependent upon the circumstances of the particular case”).
5 The dissent contends that Commander Balicki’s declaration was merely “inartfully crafted” and “lacked nuance.” Dissent at 21. This blinks reality. There can be no doubt about the message Balicki intended to convey to the district court. His declaration precisely mirrored Defendants’ litigating position: that “there [wa]s not a single ‘mitigation effort’ outlined in Plaintiffs ex parte application that ha[d] not already been implemented in the jails.”
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B. The absence of irreparable harm is alone sufficient reason to deny Defendants’ motion, Doe #1, 957 F.3d at 1061, but we also address whether Defendants have made a “strong showing” that they are likely to succeed on the merits of this appeal. First, Defendants argue that the claims in this case are unlikely to succeed because they have satisfied their obligations under the Eighth and Fourteenth Amendments by implementing the CDC guidelines “to the extent practicable to do so.” But in advancing this argument, Defendants focus largely on their own evidence, ignoring the fact that the district court expressly credited the accounts of several inmates who painted a much different picture of conditions at the jail. For example, while Defendants contend that they “test[] any inmate who exhibits COVID-19 symptoms and isolate[] that inmate according to CDC Guidance,” the district court credited the accounts of inmates who reported that Defendants were not testing all suspected cases and had recently left at least one inmate exhibiting COVID-19 symptoms in the same area as inmates who did not have symptoms. The district court’s factual findings are reviewed for clear error, Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir. 2014), and Defendants have fallen far short of making a strong showing that the findings here were clearly erroneous, see Valentine v. Collier, 140 S. Ct. 1598, 1600 (2020) (statement of Sotomayor, J.)
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(noting the importance of deferring to the district court’s factual findings in the
preliminary injunction context).6 On those facts, which portrayed a response that
fell well short of the CDC guidelines and resulted in an explosion of COVID-19
cases in the jail,7 Defendants are not likely to establish that the issuance of the
injunction was an abuse of discretion.8
6 The dissent notes that Justice Sotomayor ultimately agreed with the Supreme Court’s decision not to overturn a stay issued by the Fifth Circuit. Dissent at 10 n.5. But as Justice Sotomayor made clear, she did so because she could not conclude that the Fifth Circuit was “demonstrably wrong” in determining that the plaintiffs had failed to exhaust their administrative remedies, as required by the Prison Litigation Reform Act (PLRA). Valentine, 140 S. Ct. at 1598. In contrast here, Defendants have not challenged the district court’s finding that Plaintiffs likely satisfied the PLRA’s exhaustion requirement.
7 The dissent makes much of the fact that the rate of infection was decreasing in the days immediately preceding the issuance of the injunction. Dissent at 13–17. But it is undisputed that the number of cases was still increasing at an alarming rate—at least 57 new cases (and perhaps 67) in the two weeks before the injunction was issued. Given the potential for serious illness, or even death, faced by each of those newly infected inmates, this is hardly the rosy picture the dissent makes it out to be.
8 Although we recently stayed an injunction in a different case to the extent it imposed requirements beyond the CDC guidelines, Roman v. Wolf, No. 2055436, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020), that case involved a detention facility that did not yet have any confirmed cases of COVID-19, see Roman v. Wolf, No. EDCV 20-768 TJH (PVCx), 2020 WL 1952656, at *3 (C.D. Cal. Apr. 23, 2020). Given the district court’s findings that Defendants fell significantly short of complying with the CDC guidelines in a jail in which more than 300 inmates tested positive for COVID-19 in a one-month period, we do not believe Defendants are likely to show that the district court abused its discretion in ordering them to implement the mitigation efforts outlined in Plaintiffs’ complaint, which they represented were already in effect.
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Next, Defendants argue that the injunction is likely to be overturned because the situation in the jail has improved significantly in the weeks since it issued. They insist that the injunction “is based on outdated information” and that we must consider the current conditions in the jail in determining whether they are likely to prevail on appeal. In support, Defendants have filed a motion to supplement the record on appeal with evidence that they contend demonstrates that there are now only 23 inmates currently suffering from COVID-19 and that all new cases have come from COVID-19-positive inmates being booked into the jail, rather than from the spread of the virus within jail facilities.
This evidence, which post-dates the injunction and is offered for the first time here, on appeal, is simply not relevant to whether Defendants are likely to succeed on the merits of their appeal. Review of a preliminary injunction is “restricted to the limited and often nontestimonial record available to the district court when it granted or denied the injunction motion.” Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719, 724 (9th Cir. 1983); see also
We emphasize that the dissent is simply wrong to assert that we have “blessed” the district court’s legal findings, “effectively affirm[ed] the notion that the CDC guidelines as drafted are a per se violation of the Eighth Amendment,” and “permitt[ed]” the issuance of the preliminary injunction. See Dissent at 1, 5. The propriety of the injunction is not before us. Instead, we are tasked only with determining whether Defendants are entitled to a stay pending appeal. On the facts here, Defendants cannot show irreparable harm and have fallen short of making a “strong showing” that they are likely to succeed on the merits. Each of these conclusions, on its own, is a legally sufficient reason to deny the motion to stay.
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Wilson v. Williams, __ F.3d __, 2020 WL 3056217, at *1 (6th Cir. June 9, 2020). The evidence submitted by Plaintiffs therefore has no bearing on whether the district court abused its discretion in issuing an injunction on the record before it.9 Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1511 n.5 (9th Cir. 1994); cf. Ashcroft v. ACLU, 542 U.S. 656, 671–72 (2004).
III. In sum, we conclude that Defendants have failed to carry their burden of establishing that a stay of the preliminary injunction is appropriate. We therefore deny the motion for a stay pending appeal. Nevertheless, we recognize that the circumstances surrounding the COVID19 pandemic are evolving rapidly. While we express no view on the new evidence proffered by Defendants on appeal, we believe the parties should be permitted to present any evidence of changed circumstances to the district court, which can determine in the first instance whether it is appropriate to modify or dissolve the injunction. See Fed. R. App. P. 8(a)(1)(C) (“A party must ordinarily move first in the district court for . . . an order suspending [or] modifying . . . an injunction while an appeal is pending.”). Accordingly, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed
9 Defendants’ emergency motion to supplement the record is denied. 11

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circumstances that might merit modification or dissolution of the preliminary injunction. In the event such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate.
The previously established briefing schedule remains in effect. IT IS SO ORDERED.
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Melissa Ahlman v. Don Barnes, et al., No. 20-55568 R. Nelson, Circuit Judge, concurring in part and dissenting in part:
The exceptional threats COVID-19 poses to individual health and safety have created unforeseen challenges in all aspects of our society. It has altered how we work, how we interact, how we worship, and how we educate our children. Perhaps nowhere are these impacts more apparent than in our prison systems. I am sympathetic to the plight of our incarcerated populations and the unique health risks confinement presents during this pandemic. Despite these realities, our Article III judicial role is confined to deciding the legal questions before us, not to mandate conditions unless required by statute or the Constitution.
Splitting with recent decisions from three of our sister circuits, the majority adopts an unprecedented interpretation of the Eighth and Fourteenth Amendments by permitting a district court to issue a preliminary injunction ordering a jail to comply with safety requirements exceeding the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC guidelines”). And the majority does this in spite of jail officials’ implementation of increased protective measures prior to the Plaintiffs’ motion for a preliminary injunction and well prior to the issuance of the injunction; measures that resulted in a drastically decreased COVID-19 infection rate within the jail.
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This decision is wrong both on the law and the facts as they existed when the district court issued its injunction. Most significantly, between March 1 and May 19, 2020, Appellants released about 53 per cent of the inmates to increase social distancing and alleviate the outbreak. This unprecedented step alone negates the subjective deliberate indifference necessary for an Eighth Amendment violation. Because Appellants are likely to succeed on the merits and have also demonstrated an almost inherent likelihood of irreparable harm in the form of judicial micromanagement of prison affairs and resources, they are entitled to a stay of the injunction. I respectfully dissent.1
I To grant a stay of an injunction pending appeal, we must consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (internal quotation marks omitted). A district court’s grant of preliminary injunctive relief is reviewed for abuse
1 I concur with the majority that the district court should be allowed to consider Appellants’ new evidence of recent developments in the jail’s COVID-19 conditions on a limited remand. Because the injunction was unwarranted on May 26, and conditions have improved even more significantly, the district court will hopefully take advantage of this opportunity for a redo and lift the injunction.
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of discretion. See Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1158–59 (9th Cir. 2011). A district court abuses its discretion when it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks omitted).
II The first Nken factor, “whether the stay applicant has made a strong showing that he is likely to succeed on the merits,” requires a “minimum quantum of likely success necessary to justify a stay—be it a reasonable probability or fair prospect[.]” Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011) (internal quotation marks omitted). This first factor weighs in favor of staying the district court’s preliminary injunction because the district court based its order on both an erroneous application of the law and clearly erroneous factual findings. As a preliminary matter, the district court’s decision to impose numerous requirements on the jail exceeding the CDC guidelines runs contrary to the sound reasoning of our sister circuits’ recent decisions. See Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020); Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. 2020). Moreover, whether examined under the Fourteenth Amendment’s objective analysis or Eighth Amendment’s subjective analysis, there cannot be deliberate
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indifference where the jail both intentionally and effectively acted in response to the crisis. Particularly significant is that under the data available to the district court when it entered the preliminary injunction, the jail had already largely curbed the infection rate by implementing its internal guidelines to address the COVID-19 pandemic. While the district court determined Plaintiffs had demonstrated a likelihood of success on the merits based largely on its factual finding that “[r]ates of COVID-19 infection at the Jail are skyrocketing,” the data reveals the opposite to be true: the infection rate when the injunction issued was plummeting. More fundamentally, the district court failed to even state the correct legal standards under the objective and subjective deliberate indifference tests.
Appellants have thus demonstrated more than a reasonable probability of success on the merits.
A As an initial matter, the majority should have followed the approach taken by other circuits staying similar injunctions to the extent they imposed obligations beyond the CDC guidelines. See, e.g., Valentine, 956 F.3d at 801 (staying injunction that required specific measures that “go[] even further than CDC guidelines”); Swain, 958 F.3d at 1087–88 (staying preliminary injunction where CDC guidelines “formed the basis” of the district court’s required measures); see also Swain v. Junior, No. 20-11622, 2020 WL 3167628, at *2 (11th Cir. June 15,
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2020) (vacating preliminary injunction even though the scope of the district court’s injunction was “based largely on the CDC’s guidance”). The majority blesses the district court’s legal error in finding that the CDC guidelines provide the “floor, not the ceiling,” for constitutional claims. But this legal principle is inconsistent with Supreme Court precedent. See Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (holding that the guidance of outside organizations, including a Department of Justice Task Force, “simply do not establish the constitutional minima” and “are not determinative of the requirements of the Constitution”). The majority effectively affirms the notion that the CDC guidelines as drafted are a per se violation of the Eighth Amendment during a COVID-19 outbreak. That is inconsistent with both law and reason.
Under the standard followed by the Fifth and Eleventh circuits, most of the injunctive requirements imposed by the district court should be stayed in full or in part because they exceed the CDC guidelines and even conflict with them in some instances. For example, the district court’s order requires Appellants to “take the temperature of all class members . . . daily” and to interview “each incarcerated person daily to identify potential COVID‐19 infections,” while the CDC guidelines provide no such guidance, and only suggest temperature checks for new entrants and “in housing units where COVID-19 cases have been identified[.]” Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus
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Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf at 22.2 Additionally, while the CDC guidelines provide that “ideally” at least six feet should be maintained between all individuals, id. at 11, the district court went beyond this ideal by mandating that Appellants “provide adequate spacing of six feet or more between incarcerated people” without time, place, or other exceptions.
Even where the injunction simply requires substantial compliance with the CDC guidelines, however, Appellants are still likely to succeed on the merits of their deliberate indifference claims, as outlined below.
B The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. Prison officials’ “deliberate indifference to serious medical needs of prisoners” has been held to violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Where, as here, pretrial detainees challenge conditions of confinement, such a claim “arise[s] under the Fourteenth Amendment’s Due Process Clause, rather than
2 As Commander Balicki observed, mandatory daily temperature checks increases dangers for both inmates and staff because it significantly increases inperson contact between them.
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under the Eighth Amendment’s Cruel and Unusual Punishment Clause.” Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018) (internal quotation marks omitted).3
That standard requires that an official show objective deliberate indifference for a Fourteenth Amendment violation. Id. Under that standard, an official must fail to “take reasonable available measures to abate [a substantial] risk [of serious harm], even though a reasonable official in the circumstances would have appreciated the high degree of risk involved.” Id. at 1125. A plaintiff “must prove more than negligence but less than subjective intent—something akin to reckless disregard.” Id. (internal quotation marks omitted).
The district court determined the jail was objectively deliberately indifferent under the Fourteenth Amendment because it was “aware of the CDC Guidelines and able to implement them but fail[ed] to do so.” The district court also held that the law required the jail to “fully and consistently” apply the CDC guidelines, as well as its own additional guidelines, to “abate the spread of infection.”
The district court abused its discretion in making these erroneous legal determinations. See First Amendment Coal. v. U.S. Dep’t of Justice, 878 F.3d
3 Because about 57 per cent of the jail population was being held pretrial and the other 43 per cent was serving a sentence of incarceration, I provide separate analyses under both the Fourteenth and Eighth Amendments. See Gordon, 888 F.3d at 1124–25.
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1119, 1126 (9th Cir. 2017) (a district court abuses its discretion by applying an “incorrect legal standard”). The Fourteenth Amendment’s objective deliberate indifference standard asks whether the jail took “reasonable available measures to abate [the] risk,” Gordon, 888 F.3d at 1125, not whether the jail was “aware” of specific measures in the CDC guidelines.4 Appellants’ “aware[ness]” only relates to the subjective deliberate indifference standard, involving an entirely different analysis under the Eighth Amendment test. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The district court failed to mention (much less analyze) how a reasonable official would have acted under the circumstances—or why releasing 53 per cent of the detained inmates was not reasonable enough. Because the district court employed an “incorrect legal standard” to arrive at its conclusion of likely objective deliberate indifference by the jail, it abused its discretion. First Amendment Coal., 878 F.3d at 1126.
A district court also abuses its discretion when it “mischaracterize[s]” the appropriate legal standard. Golden v. Cal. Emergency Physicians Med. Grp., 782
4 While the district court appears to have merged the Fourteenth Amendment’s objective deliberate indifference standard outlined in Gordon (only applicable to pretrial detainees) with the objective prong of the Eighth Amendment, these are two distinct tests in the Ninth Circuit. Regarding the Eighth Amendment’s “objectively sufficiently serious” deprivation prong, which requires Appellees to demonstrate they are being “incarcerated under conditions posing a substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. 825, 834 (1994), Appellees have likely met this burden with respect to the risk of COVID-19 infection the jail’s inmates face. See Swain, 2020 WL 3167628, at *5.
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F.3d 1083, 1093 (9th Cir. 2015). Here, the district court abused its discretion by finding the jail “must fully and consistently” apply the CDC guidelines because it was “able” to in order to avoid objective deliberate indifference. “Full and consistent” compliance is a higher standard than required by the Constitution, and the district court fails to point to any precedent to the contrary. When our precedents provide that “even gross negligence,” see Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013), or a “lack of due care by a state official,” see Gordon, 888 F.3d at 1125, are insufficient to show objective deliberate indifference, “full and consistent” compliance mischaracterizes the appropriate legal standard.
Given its reliance on an incorrect and mischaracterized interpretation of the objective standard, the district court abused its discretion in determining Appellants have not demonstrated a likelihood of success on the merits regarding objective deliberate indifference.
C For the class of individuals here who are not in pre-trial detention, the Eighth Amendment and its subjective deliberate indifference test applies. Farmer, 511 U.S. at 837. To show an official’s subjective deliberate indifference, an official must “know[] of and disregard[] an excessive risk to inmate health or safety[.]” Id. To be sufficiently culpable, “the official must both be aware of facts
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from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference,” as with the criminal recklessness standard. Id. (emphasis added). A court cannot support a deliberate indifference finding based on a mere “difference of medical opinion”; rather the official’s actions must have been “in conscious disregard of an excessive risk to [inmate] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (requiring a prison’s choice of treatment to be “medically unacceptable” for prisoner to show Eighth Amendment violation) (emphasis added).
The Fifth Circuit held that under the subjective deliberate indifference standard, a district court should not look to “whether the [d]efendants reasonably abated the risk of infection” or “how [the jail’s] policy is being administered.” Valentine, 956 F.3d at 802 (internal quotation marks omitted). Instead, where a prison took steps to mitigate the risk of infection by increasing internal safety procedures, it could not have consciously “disregarded the risk” to inmate health and safety, even if the measures sometimes fall short of the CDC guidelines. Id. at 801–03. Accordingly, the Fifth Circuit granted a stay of the district court’s preliminary injunction. Id. at 806. The Supreme Court then denied the application to vacate the stay. Valentine v. Collier, 140 S. Ct. 1598 (2020).5
5 While the majority quotes Justice Sotomayor’s reference to deferring to the district court’s factual findings in Valentine, it is worth noting Justice Sotomayor
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A similar stay of a preliminary injunction in the context of protecting prison inmates from COVID-19 was also granted by the Eleventh Circuit. See Swain, 958 F.3d at 1090 (granting a motion to stay a preliminary injunction because prison’s mitigation efforts “likely do not amount to deliberate indifference”); cf. Wilson v. Williams, No. 20-3447, 2020 WL 3056217, at *7–8 (6th Cir. June 9, 2020) (vacating injunction because the prison “responded reasonably” to the risk by implementing a plan to mitigate the risk, and conditions did not violate the Eighth Amendment).6 The Eleventh Circuit recently vacated that injunction on the merits, concluding that the district court “abused its discretion in granting the preliminary injunction.” Swain, 2020 WL 3167628, at *13. For the reasons outlined below, we should have similarly granted the stay here.
i Subjective deliberate indifference requires both “knowledge” and a
voted with the unanimous Supreme Court not to reimpose the district court’s injunction. 6 Similar to these recent cases from our sister circuits, the mere fact that there was an outbreak in COVID-19 cases in the Orange County jails is insufficient on its own to justify the injunction. The COVID-19 outbreaks in Valentine and Wilson were more severe, with at least one inmate’s death reported in Valentine, 140 S. Ct. at 1599, and at least six inmate deaths and other inmates placed on ventilators in Wilson, 2020 WL 3056217 at *2, *12. Here, by contrast, the outbreak was thankfully mild, with 302 of 369 cases (81 percent) recovering before the injunction was imposed, not a single death, and only two cases requiring hospitalization.
11

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“conscious disregard” of an excessive risk. Yet in determining whether jail officials were subjectively deliberately indifferent, the district court relied solely on the evidence that the jail “knew, by way of the CDC Guidelines, that failure to take certain precautionary measures would result in an increase in the spread of infections.” Because the district court failed to articulate how the jail then “conscious[ly] disregard[ed]” this knowledge, its determination that the jail acted with subjective deliberate indifference was based “on an erroneous view of the law.” Weber, 767 F.3d at 942. As with the jail in Swain, “[n]either the resultant harm of increasing infections nor the impossibility of achieving six-foot social distancing in a jail environment establishes that the defendants acted with subjective recklessness as used in the criminal law.” 2020 WL 3167628, at *6 (internal quotation marks omitted). The district court thus abused its discretion by failing to address how the jail disregarded the COVID-19 risk. See Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018) (holding a district court abuses its discretion when it “omits a substantial factor” of the analysis).
ii Even supposing that the district court intended to incorporate its objective deliberate indifference reasoning into the subjective analysis to show “conscious disregard” (without saying so), the district court still abused its discretion by relying on clearly erroneous factual findings. The district court relied heavily on
12

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its assertion that “the numbers speak for themselves” to support its deliberate indifference determination. Based on its interpretation of the epidemiological data in the record, the district court claimed the “[r]ates of COVID-19 infection at the Jail are skyrocketing,” the number of confirmed cases is “soaring,” and “the Jail lacks the ability to contain the infection.”7 The district court reasoned that since jail officials “undoubtedly [knew] of the risks posed by COVID-19 infections,” its actions satisfy subjective deliberate indifference.
The data, however, supports the exact opposite conclusion. True, the rate of COVID-19 infection and the number of active COVID-19 cases did sharply increase from April 22 to May 8. However, the district court did not issue the injunction until May 26. As data cited in the district court’s own order confirms, from May 8—prior to Plaintiffs even filing their motion for a preliminary injunction—until the issuance of the injunction, the rate of new infections decreased by over 52 per cent compared to the previous two-and-a-half weeks.
7 The district court also claimed the rate of infection that existed at the time of its order was 12.4%, which it calculated by comparing the total confirmed COVID19 cases to an assumed total jail population of 2,826. This calculation is misleading because it provides no insight regarding how many active COVID-19 cases are in the prison at one time. For instance, even if the prison had zero active COVID-19 cases at the time the injunction was issued, the district court’s rate of infection would still be 12.4% under this method of computation. A more accurate method of calculating this rate would be to compare each week’s rate of new infections to the previous week’s rate, thus showing whether the number of active COVID-19 cases in the jail is increasing or decreasing over time.
13

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This decrease in the infection rate is apparent in the graphical depiction below. In fact, during the week immediately prior to the court’s injunction, the rate of new infections decreased by 76 per cent compared to the previous week. The district court’s assertion that the “[r]ates of COVID-19 infection at the Jail are skyrocketing,” was thus plainly erroneous: at the time it issued the injunction, the jail had been experiencing a dramatic decrease in infection rates for the previous two-and-a-half weeks.8
8 This graph (and the following one) merely provides a visual representation of the exact data the district court relied on. Had the preliminary injunction been issued in early May, this would have perhaps been a different case, with a demonstrably “skyrocketing” infection rate in the jail as characterized by the district court. But see Valentine, 956 F.3d at 802. But by May 26, this description was factually inaccurate.
Furthermore, since the injunction issued, the number of active cases dropped to 35 on June 3, and to 23 cases on June 10. The district court can consider this new evidence on remand.
14

Case: 20-55568, 06/17/2020, ID: 11725446, DktEntry: 19-2, Page 15 of 23
The same is true for the number of active COVID-19 cases. From May 8 until the issuance of the injunction, the jail saw a 67 per cent decrease in the number of active COVID-19 cases.9 Like the rate of infection, the district court’s claim that the number of cases of COVID-19 are “soaring,” misrepresented the data because the number of active COVID-19 cases decreased in the immediate two-and-a-half weeks before the injunction issued. These assertions are exactly
9 The Eleventh Circuit vacated an injunction even though the number of confirmed COVID-19 cases spiked from zero cases at the time Plaintiffs filed their complaint to 163 positive tests just three weeks later. Swain, 2020 WL 3167628, at *4. This surge in cases took place right before the district court entered its preliminary injunction, id., in stark contrast with the sharp decline of cases here.
15

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the kinds of clearly erroneous factual findings that qualify as an abuse of discretion. See, e.g., Eat Right Foods Ltd. v. Whole Foods Market, Inc., 880 F.3d 1109, 1120 (9th Cir. 2018) (finding the district court abused its discretion by incorrectly identifying the time period the relevant facts occurred).
This graphical depiction above of active cases over time illustrates that the prison quickly flattened the curve, protecting a large majority of inmates from infection. Without intervention, the number of active cases would not likely have begun decreasing so early on. More than one hundred nations, fifty states, and thousands of localities have spent billions of dollars attempting to create a COVID19 graph mirroring the decline in cases seen in the jail here. This is, by any
16

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definition, a sign of success, hardly the subjective deliberate indifference of an Eighth Amendment violation.
While the district court correctly asserts that “the numbers speak for themselves,” these numbers tell a different story. The jail’s protective measures— well prior to any injunction—appear to have successfully reduced both the number of active COVID-19 cases and the infection rate. As a further illustration, the Sheriff took the extraordinary step of reducing the jail population from 5,303 inmates on March 1 to 2,799 inmates on May 19 in an effort to increase social distancing between inmates, free up housing space, and allow for quarantine and isolation. Releasing nearly 53 per cent of the jail’s inmate population to protect against the spread of the virus completely undermines any factual finding that the jail was subjectively deliberately indifferent to the risk of harm from COVID-19.
An increase in internal safety measures coupled with a demonstrable improvement in conditions thus cannot equate to a jail’s “conscious disregard” for the welfare of the prisoners. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (internal quotation marks omitted) (noting that defendants must choose a medically unacceptable course under the circumstances in conscious disregard of an excessive risk to rise to the level of deliberate indifference). Instead, these facts support the jail’s contention that it actively took measures to reduce the risk of harm posed by the disease, the very opposite of subjective disregard. The district
17

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court cannot find that the jail’s active measures rose to the level of conscious disregard merely because “the district court might do things differently.” Valentine, 956 F.3d at 803.
The district court abused its discretion by determining Appellants had not demonstrated a likelihood of success on the merits based on a clearly erroneous assertion that the rate of the number of COVID-19 infections was increasing and that the jail had knowingly failed to take necessary precautionary measures.
III Because there is a “strong likelihood [Appellants will] succe[ed] on the merits,” they need only show that irreparable harm is probable. Leiva-Perez, 640 F.3d at 970. Appellants have carried this burden. The district court’s injunction obstructs Appellants’ ability to oversee Orange County’s jails without judicial micromanagement. As the Supreme Court has cautioned, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. Procunier v. Martinez, 416 U.S. 396, 405 (1974). Casting aside this admonition, the district court’s injunction wades into the minutia of prison operations, going so far as to dictate the amount of hand soap and number of paper towels available to
18

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each prisoner. In effect, the district court seizes the role of prison management from the elected officials of California and their agents. Contra Maryland v. King, 567 U.S. 1301, at *3 (2012) (Roberts, C.J., in chambers) (finding irreparable harm where injunction interfered with the state’s “enforcement and public safety interests”); see also Valentine, 956 F.3d at 803 (“The Texas Legislature assigned the prerogatives of prison policy to TDCJ. The district court’s injunction prevents the State from effectuating the Legislature’s choice and hence imposes irreparable injury.”) (internal citation omitted); Swain, 958 F.3d at 1090 (“Absent a stay, the defendants will lose the discretion vested in them under state law to allocate scarce resources among different county operations necessary to fight the pandemic. Through its injunction, the district court has taken charge of many administrative decisions typically left to MDCR officials.”); Swain, 2020 WL 3167628, at *12 (same).
The district court’s micromanagement of prison operations is particularly troubling given that our deference to prison officials should be at its zenith during the COVID-19 pandemic. Chief Justice Roberts recently emphasized the need to defer to elected officials as they confront the immense public policy problems created by COVID-19:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas fraught with medical and scientific
19

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uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., in chambers). The district court wrongly assumed the prison administration role in issuing the injunction, throwing up a roadblock that prison officials must now overcome as they try to respond to real time developments in Orange County’s jails. See Valentine, 956 F.3d at 803 (observing that the preliminary injunction issued by the district court “locks in place a set of policies for a crisis that defies fixed approaches”); Swain, 958 F.3d at 1090 (“The injunction hamstrings MDCR officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic. They cannot respond to the rapidly evolving circumstances on the ground without first seeking a permission slip from the district court. Such a prohibition amounts to an irreparable harm.”) (internal quotation marks and citation omitted)). The majority entirely ignores the Supreme Court’s guidance on the deference owed to prison officials in the midst of this crisis and instead limits its irreparable harm analysis to the “[s]elf-inflicted wound” created by Commander
20

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Balicki’s declarations. Shortly after the number of COVID-19 cases in the jails peaked, Commander Balicki signed a declaration attesting that “OCSD has, at a minimum, already implemented all of the mitigation efforts outlined in plaintiffs’ request for relief. (See Complaint, ¶138(3)(a)-(o).)[.]” The district court did not hold an in-person evidentiary hearing before weighing conflicting affidavits from Commander Balicki and the prisoners. When Commander Balicki attempted to clarify in a subsequent affidavit that some portions of the district court’s injunction potentially endangered the health and welfare of prison officials and inmates, the district court dismissed those concerns (again, without an in-person evidentiary hearing) for the sole reason that they were inconsistent with his first declaration. The majority doubles down on this approach.
To be sure, Commander Balicki’s statement in his original declaration lacked nuance. And on remand the district court should hold an in-person evidentiary hearing to give Commander Balicki an opportunity to explain the putative discrepancies in his declarations. But the greater error belongs to the district court. The district court ignored the problems created by the injunction. An injunction must issue (and continue) based on a concrete constitutional violation, not as an apparent sanction for inartfully crafted declarations. Even if Commander Balicki’s putative conflicting statements are problematic, they do not justify the judiciary’s micromanagement of prison operations during a national
21

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pandemic. See Swain, 2020 WL 3167628, at *6, *11 (vacating injunction despite conflicting evidence whether the jail was complying with its stated protocols); see also Valentine, 140 S. Ct. at 1600 n.2 (statement of Sotomayor, J.) (agreeing with denial of application to vacate stay while noting that the prison had “regularly fail[ed] to comply with standards far below” the CDC guidelines, despite its representation to the district court that it “updated [its] policy periodically in response to the ever-evolving CDC guidelines,” Valentine, 956 F.3d at 805 n.2).
There can be little doubt the harm caused by the district court’s injunction is irreparable. The injunction requires California to expend and allocate additional scarce public resources to take care of the prisoners in Orange County’s jails— potentially at the expense of other prisoners in other jails. In the likely event Appellants prevail on the merits, California cannot recover its misallocation of scarce public resources. See Swain, 958 F.3d at 1090. Such a harm is necessarily irreparable. Id.
IV The third and fourth Nken factors––harm to the party opposing the injunction and the public interest––“merge when the Government is the opposing party.” 556 U.S. at 435. My discussion of the first and second Nken factors is dispositive of the third and fourth factors. Prison officials are harmed when the judiciary usurps their authority to manage prisons, particularly during a public
22

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health crisis. And the public is unquestionably interested in the proper management of prisons. Accordingly, these factors also weigh in favor of a stay. See Valentine, 956 F.3d at 804; Swain, 958 F.3d at 1090–91.
* ** Because the district court abused its discretion in granting Appellees preliminary injunctive relief, Appellants’ emergency motion for a stay of the injunction should have been granted. I therefore respectfully dissent.
23

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 20-55568 Nature of Suit: 3440 Other Civil Rights Melissa Ahlman, et al v. Don Barnes, et al Appeal From: U.S. District Court for Central California, Santa Ana Fee Status: Paid

Docketed: 05/28/2020

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0973-8 : 8:20-cv-00835-JGB-SHK

Trial Judge: Jesus G. Bernal, District Judge

Date Filed: 04/30/2020

Date

Date Order/Judgment

Order/Judgment:

EOD:

05/26/2020

05/26/2020

Date NOA Filed:
05/28/2020

Date Rec'd COA:
05/28/2020

Prior Cases: None

Current Cases: Lead
Companion 20-55568

Member 20-55668

Start

End

07/01/2020

MELISSA AHLMAN Plaintiff - Appellee,

Peter Jay Eliasberg [COR LD NTC Retained] ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017
Paul L. Hoffman [COR LD NTC Retained] Schonbrun DeSimone Seplow Harris & Hoffman 723 Ocean Front Walk Venice, CA 90291
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained]

Covington & Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] Schonbrun Seplow Harris Hoffman & Zeldes LLP 11543 W. Olympic Boulevard Los Angeles, CA 90064
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, DC 20001-4956
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] Covington & Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] American Civil Liberties Union Capital Punishment Project Suite 402 201 West Main Street Durham, NC 27701

DANIEL KAUWE Plaintiff - Appellee,

Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004
Peter Jay Eliasberg [COR LD NTC Retained] (see above)
Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained]

MICHAEL SEIF Plaintiff - Appellee,

(see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)
Peter Jay Eliasberg [COR LD NTC Retained] (see above)
Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)

JAVIER ESPARZA Plaintiff - Appellee,

Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)
Peter Jay Eliasberg [COR LD NTC Retained] (see above)
Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500

PEDRO BONILLA Plaintiff - Appellee,

[COR NTC Retained] (see above)
Peter Jay Eliasberg [COR LD NTC Retained] (see above)
Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)

CYNTHIA CAMPBELL Plaintiff - Appellee,
MONIQUE CASTILLO Plaintiff - Appellee,

Peter Jay Eliasberg [COR LD NTC Retained] (see above)
Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)
Peter Jay Eliasberg [COR LD NTC Retained]

MARK TRACE Plaintiff - Appellee,

(see above)
Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)
Peter Jay Eliasberg [COR LD NTC Retained] (see above)

CECIBEL CARIDAD ORTIZ Plaintiff - Appellee,

Paul L. Hoffman [COR LD NTC Retained] (see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)
Peter Jay Eliasberg [COR LD NTC Retained] (see above)
Paul L. Hoffman [COR LD NTC Retained]

(see above)
Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)

DON WAGNER, on behalf of themselves and Peter Jay Eliasberg

all others similarly situated

[COR LD NTC Retained]

Plaintiff - Appellee,

(see above)

Paul L. Hoffman [COR LD NTC Retained] (see above)

v.
DON BARNES, in his official capacity as Sheriff of Orange County, California
Defendant - Appellant,

Mitchell Aaron Kamin Direct: 424-332-4759 [COR LD NTC Retained] (see above)
John Clay Washington, Esquire, Attorney Direct: 310-396-0731 [COR LD NTC Retained] (see above)
Zoe Brennan-Krohn Direct: 415-343-0769 [COR NTC Retained] (see above)
Stacey Grigsby Direct: 202-662-5238 [COR NTC Retained] (see above)
Aaron Lewis Direct: 424-332-4800 [COR NTC Retained] (see above)
Cassandra Stubbs Direct: 919-682-5659 [COR NTC Retained] (see above)
Carl Takei, Esquire Direct: 212-549-2500 [COR NTC Retained] (see above)
Donald Kevin Dunn Direct: 714-834-3300 [COR LD NTC Dep County Counsel] Orange County Counsel's Office Suite 407 333 W. Santa Ana Boulevard P.O. Box 1370 Santa Ana, CA 92701

COUNTY OF ORANGE Defendant - Appellant,

Laura D. Knapp, Supervising Deputy County Counsel Direct: 714-834-5241 [COR LD NTC Dep County Counsel] Orange County Counsel's Office Suite 407 333 W. Santa Ana Boulevard P.O. Box 1370 Santa Ana, CA 92701
Rebecca S. Leeds Direct: 714-834-3906 [COR LD NTC Dep County Counsel] Orange County Counsel's Office Suite 407 333 W. Santa Ana Boulevard P.O. Box 1370 Santa Ana, CA 92701
Kayla Nicole Watson Direct: 714-834-3300 [COR LD NTC Dep County Counsel] Orange County Counsel's Office Rm. 407 333 W. Santa Ana Boulevard P.O. Box 1370 Santa Ana, CA 92701
Donald Kevin Dunn Direct: 714-834-3300 [COR LD NTC Dep County Counsel] (see above)
Laura D. Knapp, Supervising Deputy County Counsel Direct: 714-834-5241 [COR LD NTC Dep County Counsel] (see above)
Rebecca S. Leeds Direct: 714-834-3906 [COR LD NTC Dep County Counsel] (see above)

Kayla Nicole Watson Direct: 714-834-3300 [COR LD NTC Dep County Counsel] (see above)

MELISSA AHLMAN; DANIEL KAUWE; MICHAEL SEIF; JAVIER ESPARZA; PEDRO BONILLA; CYNTHIA CAMPBELL; MONIQUE CASTILLO; MARK TRACE; CECIBEL CARIDAD ORTIZ; DON WAGNER, on behalf of themselves and all others similarly situated,
Plaintiffs - Appellees,
v.
DON BARNES, in his official capacity as Sheriff of Orange County, California; COUNTY OF ORANGE,
Defendants - Appellants.

05/28/2020 1
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05/28/2020 2
2 pg, 124.88 KB
06/01/2020 3
2 pg, 193.22 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows:. to be set. Preliminary Injunction Appeal. C.R. 3-3. [11704349] (RT) [Entered: 05/28/2020 03:47 PM]
Filed clerk order (Deputy Clerk: TSP): The appeal filed May 28, 2020 is a preliminary injunction appeal. Accordingly, Ninth Circuit Rule 3-3 shall apply. The mediation questionnaire is due three days after the date of this order. If they have not already done so, within 7 calendar days after the filing date of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal. The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due not later than June 28, 2020; the answering brief is due July 23, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3-3(b). No streamlined extensions of time will be approved. See 9th Cir. R. 31-2.2(a)(3). Any request for an extension of time to file a brief must be made by written motion under Ninth Circuit Rule 31-2.2(b). Failure to file timely the opening brief shall result in the automatic dismissal of this appeal by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. [11704456] (JBS) [Entered: 05/28/2020 04:51 PM]
Filed (ECF) Appellants Don Barnes and County of Orange Mediation Questionnaire. Date of service: 06/01/2020. [11707256] [20-55568] (Watson, Kayla) [Entered: 06/01/2020 03:44 PM]

06/01/2020 4

The Mediation Questionnaire for this case was filed on 06/01/2020. To submit pertinent confidential information directly to the Circuit Mediators, please use the following link. Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11707500]. [20-55568] (AD) [Entered: 06/01/2020 06:44 PM]

06/03/2020 5
5 pg, 168.21 KB

MEDIATION CONFERENCE SCHEDULED - DIAL-IN AssessmentConference, 06/19/2020, 10:00 a.m., PACIFIC Time. The briefing schedule previously set by the court remains in effect. See order for instructions and details. [11709460] (VS) [Entered: 06/03/2020 10:01 AM]

06/03/2020 6

Filed (ECF) notice of appearance of Stacey K. Grigsby (Covington & Burling, 850 10th Street NW, Washington, DC 20001) for Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner. Date of service: 06/03/2020. (Party was previously proceeding with counsel.) [11709845] [20-55568] (Grigsby, Stacey) [Entered: 06/03/2020 01:10 PM]

06/03/2020 7

Added Attorney(s) Stacey Grigsby for party(s) Appellee Don Wagner Appellee Pedro Bonilla Appellee Daniel Kauwe Appellee Monique Castillo Appellee Mark Trace Appellee Cynthia Campbell Appellee Melissa Ahlman Appellee Cecibel Caridad Ortiz Appellee Javier Esparza Appellee Michael Seif, in case 2055568. [11709859] (QDL) [Entered: 06/03/2020 01:17 PM]

06/03/2020 8

Filed (ECF) Appellants Don Barnes and County of Orange

1009 pg, 71.17 MB EMERGENCY Motion to stay lower court action. Date of

service: 06/03/2020. [11710031] [20-55568] (Watson, Kayla)

[Entered: 06/03/2020 02:40 PM]

06/03/2020 9
11 pg, 254.27 KB

Filed (ECF) Appellants Don Barnes and County of Orange Correspondence: Amended Declaration of Commander Joseph Balicki. Date of service: 06/03/2020. [11710277] [20-55568] -[COURT UPDATE: Updated docket text to reflect correct ECF filing type. 6/4/2020 by TYL] (Watson, Kayla) [Entered: 06/03/2020 04:50 PM]

06/04/2020 10
1 pg, 98.73 KB

Filed order (SUSAN P. GRABER and KIM MCLANE WARDLAW) We have received appellants’ supplemented emergency motion at Docket Entry No. [8] seeking to stay the district court’s May 26, 2020 order pending resolution of this appeal. Appellees’ response to the emergency motion is due June 8, 2020. Appellants’ optional reply is due June 10, 2020. To the extent that appellants’ emergency motion requests an immediate stay of the district court’s May 26, 2020 order pending resolution of the emergency motion, the request is denied. [11710738] (JBS) [Entered: 06/04/2020 09:35 AM]

06/08/2020 11

Filed (ECF) notice of appearance of Zoe Brennan-Krohn (American Civil Liberties Union Foundation, 39 Drumm St, San Francisco, CA 94111) for Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner. Date of service: 06/08/2020. (Party was previously proceeding with counsel.) [11714763] [20-55568] (Brennan-Krohn, Zoe) [Entered: 06/08/2020 03:50 PM]

06/08/2020 12

Added Attorney(s) Zoe Brennan-Krohn for party(s) Appellee Don Wagner Appellee Pedro Bonilla Appellee Daniel Kauwe Appellee Monique Castillo Appellee Mark Trace Appellee Cynthia Campbell Appellee Melissa Ahlman Appellee Cecibel Caridad Ortiz Appellee Javier Esparza Appellee Michael Seif, in case 2055568. [11714884] (QDL) [Entered: 06/08/2020 04:24 PM]

06/08/2020 13
59 pg, 630.49 KB

Filed (ECF) Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner response opposing motion ([8] Motion (ECF Filing), [8] Motion (ECF Filing)). Date of service: 06/08/2020. [11715102] [20-55568] (Kamin, Mitchell) [Entered: 06/08/2020 06:09 PM]

06/10/2020 14

Filed (ECF) Appellants Don Barnes and County of Orange reply

12 pg, 193.24 KB to response (). Date of service: 06/10/2020. [11717959] [20-

55568] (Watson, Kayla) [Entered: 06/10/2020 04:47 PM]

06/10/2020 15
35 pg, 4.83 MB

Filed (ECF) Appellants Don Barnes and County of Orange EMERGENCY Motion to supplement record on appeal. Date of service: 06/10/2020. [11717962] [20-55568] (Watson, Kayla) [Entered: 06/10/2020 04:51 PM]

06/12/2020 16
2 pg, 142.31 KB

Filed order (SUSAN P. GRABER, KIM MCLANE WARDLAW and RYAN D. NELSON) Appellants’ emergency motion to stay the district court’s May 26, 2020 order (Docket Entry No. [8]) is denied. See Nken v. Holder, 556 U.S. 418, 426 (2009). A written

order giving the court’s reasoning will follow in due course. Appellants’ emergency motion to supplement the record on appeal (Docket Entry No. [15]) is denied. However, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. See Fed. R. App. P. 8(a)(1)(C) (“A party must ordinarily move first in the district court for . . . an order suspending [or] modifying . . . an injunction while an appeal is pending.”); Nat’l Wildlife Fed’n v. Burlington N.R.R., 23 F.3d 1508, 1511 n.5 (9th Cir. 1994) (declining to consider new evidence in a preliminary injunction appeal because “[f]acts not presented to the district court are not part of the record on appeal”). In the event that such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate. The previously established briefing schedule remains in effect. (SEE ORDER FOR FULL TEXT) [11720788] (JBS) [Entered: 06/12/2020 04:53 PM]

06/16/2020 17

Filed (ECF) notice of appearance of Aaron M. Lewis (Covington & Burling LLP, 1999 Avenue of the Stars, Los Angeles, CA 90067) for Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner. Date of service: 06/16/2020. (Party was previously proceeding with counsel.) [11723582] [20-55568] (Lewis, Aaron) [Entered: 06/16/2020 01:09 PM]

06/16/2020 18

Added Attorney(s) Aaron Lewis for party(s) Appellee Don Wagner Appellee Pedro Bonilla Appellee Daniel Kauwe Appellee Monique Castillo Appellee Mark Trace Appellee Cynthia Campbell Appellee Melissa Ahlman Appellee Cecibel Caridad Ortiz Appellee Javier Esparza Appellee Michael Seif, in case 2055568. [11723627] (QDL) [Entered: 06/16/2020 01:28 PM]

06/17/2020 19
35 pg, 374.99 KB

Filed order (SUSAN P. GRABER, KIM MCLANE WARDLAW and RYAN D. NELSON) Defendants-Appellants Orange County and Sheriff Don Barnes (Defendants) have filed a motion to stay the district court’s May 26, 2020, preliminary injunction order. We deny the motion to stay, but remand for the limited purpose of allowing the district court to consider whether changed circumstances justify modifying or dissolving the injunction....In sum, we conclude that Defendants have failed to carry their

06/19/2020 20
1 pg, 86.7 KB
06/22/2020 21
8 pg, 397.61 KB
06/23/2020 22
06/23/2020 23

burden of establishing that a stay of the preliminary injunction is appropriate. We therefore deny the motion for a stay pending appeal. Nevertheless, we recognize that the circumstances surrounding the COVID-19 pandemic are evolving rapidly. While we express no view on the new evidence proffered by Defendants on appeal, we believe the parties should be permitted to present any evidence of changed circumstances to the district court, which can determine in the first instance whether it is appropriate to modify or dissolve the injunction. See Fed. R. App. P. 8(a)(1)(C) (“A party must ordinarily move first in the district court for . . . an order suspending [or] modifying . . . an injunction while an appeal is pending.”). Accordingly, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. In the event such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate. The previously established briefing schedule remains in effect. IT IS SO ORDERED. (SEE ORDER FOR FULL TEXT) [11725446] (OC) [Entered: 06/17/2020 05:03 PM]
MEDIATION STATUS REPORT DUE - 07/06/2020. See order for details. [11727575] (VS) [Entered: 06/19/2020 11:40 AM]
Filed (ECF) Appellants Don Barnes and County of Orange Motion to extend time to file Opening brief until 07/29/2020. Date of service: 06/22/2020. [11729551] [20-55568] (Watson, Kayla) [Entered: 06/22/2020 02:54 PM]
Filed (ECF) notice of appearance of Carl Takei (American Civil Liberties Union Foundation, 125 Broad St., 18th Floor, New York, NY 10004) for Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner. Date of service: 06/23/2020. (Party was previously proceeding with counsel.) [11730052] [20-55568] (Takei, Carl) [Entered: 06/23/2020 05:27 AM]
Filed (ECF) notice of appearance of Cassandra Stubbs (American Civil Liberties Union Foundation, 201 W. Main St. Suite 402, Durham, NC 27701) for Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner. Date of service: 06/23/2020. (Party was

previously proceeding with counsel.) [11730055] [20-55568] (Stubbs, Cassandra) [Entered: 06/23/2020 05:33 AM]

06/23/2020 24

Added Attorney(s) Carl Takei, Cassandra Stubbs for party(s) Appellee Don Wagner, Appellee Pedro Bonilla, Appellee Daniel Kauwe, Appellee Monique Castillo, Appellee Mark Trace, Appellee Cynthia Campbell, Appellee Melissa Ahlman, Appellee Cecibel Caridad Ortiz, Appellee Javier Esparza and Appellee Michael Seif, in case 20-55568. [11730258] (QDL) [Entered: 06/23/2020 09:08 AM]

06/24/2020 25
1 pg, 122.17 KB

Filed clerk order (Deputy Clerk: LBS): Appellants’ unopposed motion (Docket Entry No. [21]) for an extension of time to file the opening brief is granted. The opening brief is due July 29, 2020. The answering brief is due August 26, 2020, or 28 days after service of the opening brief, whichever is earlier. The optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3-3(b). [11732307] (JBS) [Entered: 06/24/2020 01:16 PM]

06/26/2020 26
177 pg, 14.7 MB

Filed (ECF) Appellants Don Barnes and County of Orange Urgent Motion to stay lower court action. Date of service: 06/26/2020. [11735588] [20-55568] (Watson, Kayla) [Entered: 06/26/2020 06:03 PM]

06/29/2020 27
27 pg, 379.55 KB

Filed (ECF) Appellees Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner response opposing motion ([26] Motion (ECF Filing), [26] Motion (ECF Filing)). Date of service: 06/29/2020. [11737008] [20-55568] (Kamin, Mitchell) [Entered: 06/29/2020 03:50 PM]

06/29/2020 28
1 pg, 123.11 KB

Filed order (SUSAN P. GRABER, KIM MCLANE WARDLAW and RYAN D. NELSON) Appellants’ urgent motion to stay the district court’s May 26, 2020 order (Docket Entry No. [26]) is denied. Appellants’ urgent motion raises arguments regarding the district court’s evaluation of evidence presented in support of appellants’ ex parte application to dissolve the May 26, 2020 preliminary injunction. We lack jurisdiction to review the district court’s June 26, 2020 order denying appellants’ ex parte request absent the filing of a new or amended notice of appeal. See Fed. R. App. P. 3(c)(1)(B) (“The notice of appeal must . . . designate the judgment, order, or part thereof being appealed . . .”). The previously established briefing schedule remains in effect. [11737050] (JBS) [Entered: 06/29/2020 04:03 PM]

06/29/2020 29
07/07/2020 30
1 pg, 87.17 KB
07/21/2020 31
5 pg, 261.25 KB
07/22/2020 32
1 pg, 121.54 KB
07/28/2020 33
2 pg, 65.67 KB
07/30/2020 34
1 pg, 99.37 KB
08/05/2020 35
8 pg, 74.94 KB

Deleted Incorrect Entry. Opened as a new appeal. Notice about deletion sent to case participants registered for electronic filing. Original Text: Received copy of amended notice of appeal from district court filed on 06/29/2020. [11739558] (QDL) [Entered: 07/01/2020 10:45 AM]
MEDIATION STATUS REPORT DUE - 07/24/2020. See order for details. [11744981] (VS) [Entered: 07/07/2020 03:41 PM]
Filed (ECF) Appellants Don Barnes and County of Orange Motion to extend time to file Opening brief until 08/31/2020. Date of service: 07/21/2020. [11760174] [20-55568] (Watson, Kayla) [Entered: 07/21/2020 10:08 AM]
Filed clerk order (Deputy Clerk: LBS): Appellants’ unopposed motion (Docket Entry No. [31]) for an extension of time to file the opening brief is granted. The opening brief is due August 31, 2020. The answering brief is due September 28, 2020 or 28 days after service of the opening brief, whichever is earlier. The optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3-3(b). [11761886] (JBS) [Entered: 07/22/2020 11:02 AM]
Filed (ECF) Appellants Don Barnes and County of Orange Stipulated Motion to consolidate cases 20-55568; 20-55668. Date of service: 07/28/2020. [11768764] [20-55568] (Watson, Kayla) [Entered: 07/28/2020 10:02 AM]
MEDIATION CONFERENCE SCHEDULED - DIAL-IN Conference, 08/05/2020, 3:00 p.m., Pacific Time. See order for details. [11771529] (VS) [Entered: 07/30/2020 08:22 AM]
Received letter from the Supreme Court dated 08/05/2020: The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted, and the districtcourt’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit anddisposition of the petition for a writ of certiorari, if such writis timely sought. Should the petition for a writ of certioraribe denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stayshall terminate upon the sending down of the judgment of this Court. JUSTICE BREYER and JUSTICE KAGAN would deny the application. JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from the grant of stay. Supreme Court No. 20A19. [11778739] [20-55568, 20-55668] (HH) [Entered: 08/05/2020 03:20 PM]

08/07/2020 36
1 pg, 100.19 KB

MEDIATION CONFERENCE SCHEDULED - DIAL-IN Conference, 08/10/2020, 11:00 a.m., Pacific Time. See order for details. [11780739] (VS) [Entered: 08/07/2020 08:37 AM]

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 ACCO,TRO,(SHKx),APPEAL,DISCOVERY,PROTORD,RELATED-G
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CIVIL DOCKET FOR CASE #: 8:20-cv-00835-JGB-SHK

Melissa Ahlman et al v. Don Barnes Assigned to: Judge Jesus G. Bernal Referred to: Magistrate Judge Shashi H. Kewalramani Related Case: 5:18-cv-02604-JGB-SHK Case in other court: Ninth Circuit, 20-22668
Ninth Circuit, 20-55568 Cause: 42:1983 Civil Rights Act

Date Filed: 04/30/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Melissa Ahlman on behalf of themselves and all others similarly situated

represented by Mitchell A Kamin Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643 424-332-4800 Fax: 424-332-4749 Email: mkamin@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643 424-332-4754 Fax: 415-591-6091 Email: alewis@cov.com ATTORNEY TO BE NOTICED

Amia L Trigg Covingon and Burling LLP 850 10th Street NW Washington, DC 20001 202-662-5906 Fax: 202-778-5906 Email: atrigg@cov.com ATTORNEY TO BE NOTICED

Brittany L. Benjamin

Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067 434-332-4790 Fax: 424-332-4749 Email: bbenjamin@cov.com ATTORNEY TO BE NOTICED
Carl Takei American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: ctakei@aclu.org ATTORNEY TO BE NOTICED
Cassandra Stubbs American Civil Liberties Union Capital Punishment Project 201 West Main Street Suite 402 Durham, NC 27701 919-688-4605 Fax: 919-682-5961 Email: cstubbs@aclu.org ATTORNEY TO BE NOTICED
Clara Spera American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2633 Fax: 212-549-2649 Email: cspera@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick ACLU National Prison Project 39 Drumm Street San Francisco, CA 94111 202-393-4930 Email: ckendrick@aclu.org ATTORNEY TO BE NOTICED

Cristina Becker Ellis American Civil Liberties Union Foundation 201 West Main Street Suite 402 Durham, NC 27701 919-433-8521 Email: cbecker@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill Covington and Burling LLP 1999 Avenue of the Stars, Suite 3452 Los Angeles, CA 90067 202-425-1527 Email: jahill@cov.com ATTORNEY TO BE NOTICED
John Clay Washington Schonbrun Seplow Harris Hoffman and Zeldes LLP 11543 West Olympic Boulevard Los Angeles, CA 90064 310-396-0731 Fax: 310-399-7040 Email: jwashington@sshhzlaw.com ATTORNEY TO BE NOTICED
Joseph Longley American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 202-548-6602 Email: jlongley@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen Covington and Burling LLP 850 - 10th Street NW Washington, DC 20001 202-662-5222 Fax: 202-778-5222 Email: lcohen@cov.com PRO HAC VICE

ATTORNEY TO BE NOTICED
Marta P. Cook Covington and Burling LLP 850 - 10th Street NW Washington, DC 20001 202-662-5953 Fax: 202-778-5953 Email: mcook@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign American Civil Liverties Union Foundation 201 West Main Street Suite 402 Durham, NC 27701 919-433-8520 Email: oensign@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman Schonbrun Seplow Harris and Hoffman LLP Irvine School of Law Civil Rights Litigation Clinic 200 Pier Avenue Suite 226 Hermosa Beach, CA 90254 310-717-7373 Fax: 310-399-7040 Email: hoffpaul@aol.com ATTORNEY TO BE NOTICED
Peter J Eliasberg ACLU of Southern California 1313 West 8th Street Suite 200 Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5299 Email: peliasberg@aclusocal.org ATTORNEY TO BE NOTICED
Sarah A. Hinger American Civil Liberties Union 125 Broad Street 18th Floor

Plaintiff
Daniel Kauwe on behalf of themselves and all others similarly situated

New York, NY 10004 212-519-7882 Fax: 212-549-2654 Email: shinger@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 202-904-7727 Email: strivedi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby Covington and Burling LLP 850 - 10th Street NW Washington, DC 20001 202-662-5238 Fax: 202-778-5238 Email: sgrigsby@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415-343-0769 Fax: 415-395-0950 Email: zbrennan-krohn@aclu.org ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill (See above for address) ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address)

Plaintiff
Michael Seif on behalf of themselves and all others similarly situated TERMINATED: 01/07/2021

PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE

Plaintiff
Javier Esparza on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis

(See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill (See above for address) ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Pedro Bonilla on behalf of themselves and all others similarly situated

Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill (See above for address) ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address)

Plaintiff

PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED

Cynthia Campbell on behalf of themselves and all others similarly situated

represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill (See above for address) ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED

Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn

Plaintiff
Monique Castillo on behalf of themselves and all others similarly situated TERMINATED: 01/07/2021

(See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED

Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn

Plaintiff
Mark Trace on behalf of themselves and all others similarly situated

(See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill (See above for address) ATTORNEY TO BE NOTICED

John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE

Plaintiff
Cecibel Caridad Ortiz on behalf of themselves and all others similarly situated TERMINATED: 01/07/2021

ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED
Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman Schonbrun Seplow Harris and Hoffman LLP 200 Pier Avenue Suite 226 Hermosa Beach, CA 90254 310-717-7373 Fax: 310-399-7040 Email: hoffpaul@aol.com ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Somil B Trivedi (See above for address) PRO HAC VICE

Plaintiff
Don Wagner on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Mitchell A Kamin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Amia L Trigg (See above for address) ATTORNEY TO BE NOTICED
Brittany L. Benjamin (See above for address) ATTORNEY TO BE NOTICED
Carl Takei (See above for address) ATTORNEY TO BE NOTICED
Cassandra Stubbs (See above for address) ATTORNEY TO BE NOTICED
Clara Spera (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Corene Kendrick (See above for address) ATTORNEY TO BE NOTICED

Cristina Becker Ellis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jazzirelle Hill (See above for address) ATTORNEY TO BE NOTICED
John Clay Washington (See above for address) ATTORNEY TO BE NOTICED
Joseph Longley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marta P. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Harper Ensign (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Don Barnes in his official capacity as Sheriff of Orange County, California

Somil B Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey K Grigsby (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zoe A Brennan-Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by D Kevin Dunn Orange County Counsels Office 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92701 714-834-3300 Fax: 714-834-2359 Email: kevin.dunn@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kayla Nicole Watson Office of the County Counsel County of Orange 333 West Santa Ana Boulevard Suite 407 P O Box 1379 Santa Ana, CA 92702-1379 714-834-3300 Fax: 714-834-2359 Email: kayla.watson@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura D Knapp Orange County Counsel 333 West Santa Ana Boulevard Suite 407

Defendant Orange County

Santa Ana, CA 92701 714--834-6020 Fax: 714-834-2359 Email: laura.knapp@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Sorgen Leeds Orange County Counsels Office 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92702 714-834-3300 Fax: 714-834-2359 Email: rebecca.leeds@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanne Esther Shoai County of Orange Office of the County Counsel 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92701 714-834-2057 Fax: 714-834-2359 Email: suzy.shoai@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by D Kevin Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kayla Nicole Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura D Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Joseph Arreguin

Rebecca Sorgen Leeds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanne Esther Shoai (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura B. Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jerry L Steering Law Offices of Jerry Steering 4063 Birch Street Suite 100 Newport Beach, CA 92660 949-474-1849 Fax: 949-474-1883 Email: jerrysteering@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Paul Herman Richard P Herman Law Offices P O Box 53114 Irvine, CA 92619-3114 714-547-8512 Fax: 949-209-2693 Email: rherman@richardphermanlaw.com ATTORNEY TO BE NOTICED

Date Filed 04/30/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus by a Person in State Custody (28 USC 2254), Receipt No. BCACDC-26288526 for $5 filing fee, filed by Plaintiffs Cynthia Campbell, Michael Seif, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, Mark Trace, Melissa Ahlman, Javier Esparza, Don Wagner, Pedro Bonilla. (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,

04/30/2020 04/30/2020 04/30/2020 04/30/2020
04/30/2020 04/30/2020

# 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA) (Attorney Mitchell A Kamin added to party Melissa Ahlman(pty:pla), Attorney Mitchell A Kamin added to party Pedro Bonilla(pty:pla), Attorney Mitchell A Kamin added to party Cynthia Campbell(pty:pla), Attorney Mitchell A Kamin added to party Monique Castillo(pty:pla), Attorney Mitchell A Kamin added to party Javier Esparza(pty:pla), Attorney Mitchell A Kamin added to party Daniel Kauwe(pty:pla), Attorney Mitchell A Kamin added to party Cecibel Caridad Ortiz(pty:pla), Attorney Mitchell A Kamin added to party Michael Seif(pty:pla), Attorney Mitchell A Kamin added to party Mark Trace(pty:pla), Attorney Mitchell A Kamin added to party Don Wagner(pty:pla))(Kamin, Mitchell) (Entered: 04/30/2020)
2 CIVIL COVER SHEET filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 04/30/2020)
3 CERTIFICATE of Interested Parties filed by Plaintiffs All Plaintiffs, (Kamin, Mitchell) (Entered: 04/30/2020)
4 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus,,,,, 1 filed by PLAINTIFFS Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 04/30/2020)
5 NOTICE OF REFERENCE to a U.S. Magistrate Judge. This case has been assigned to the calendar of the Honorable District Judge Percy Anderson and referred to Magistrate Judge Gail J. Standish, who is authorized to consider preliminary matters and conduct all further hearings as may be appropriate or necessary. Pursuant to Local Rule 832.4, the Court must be notified within five (5) days of any address change. See notice for additional details. (lh) (Entered: 04/30/2020)
6 NOTICE OF DEFICIENCIES in Attorney Case Opening. The following error(s) was found: Other error(s) with document(s): A temporary restraining order (TRO) flag was indicated, but no TRO document was filed. (lh) (Entered: 04/30/2020)
7 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Stacey Grigsby. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac

04/30/2020 04/30/2020 04/30/2020

Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
8 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Olivia Ensign. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
9 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Cristina Becker. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
10 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Carl Takei. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)

04/30/2020
04/30/2020
04/30/2020 05/01/2020 05/01/2020 05/01/2020

11 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Somil Trivedi. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
12 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Clara Spera. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (lh) (Entered: 04/30/2020)
13 NOTICE OF DEFICIENCIES in Attorney Case Opening RE: Summons Request, 4 . The following error(s) was found: Other error(s) with document(s): Summons are Not issued for Habeas Petitions. Court will order service as appropriate. (lh) (Entered: 04/30/2020)
14 RESPONSE filed by Pro Hac Vice attorney Carl Takei on behalf of Plaintiffs Melissa Ahlman, et al. RE: Notice of Filing Fee Due. PHV fee n/a. Attorney is a licensed California attorney, admitted to this Court, is currently Active and in good standing. (Thrasher, Lupe) (Entered: 05/01/2020)
15 NOTICE of Related Case(s) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. Related Case(s): 5:20-cv-00768; 19:cv-01546 (Kamin, Mitchell) (Entered: 05/01/2020)
16 MINUTE ORDER IN CHAMBERS - COURT ORDER by Judge Percy Anderson. In light of the significant public policy issues involved in this action, the Court orders all of the parties in this action to meet and confer prior to the filing of all applications and motions for injunctive relief

05/01/2020 05/01/2020
05/04/2020
05/04/2020 05/04/2020 05/04/2020 05/04/2020 05/05/2020

notwithstanding the exception in Local Rule 7-3, which otherwise exempts applications and motions for injunctive relief from the conference of counsel requirements. Prior to the filing of any application or motion seeking injunctive relief, the parties in this action shall contact opposing counsel to discuss thoroughly, the substance of any such contemplated application or motion, any potential resolution, and whether the parties can agree on an appropriate briefing schedule. All Notices of Motions and Applications seeking injunctive relief shall summarize counsel's pre-filing efforts to discuss these matters. (mrgo) (Entered: 05/01/2020)
17 STANDING ORDER by Judge Percy Anderson. READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. (See document for details) (mrgo) (Entered: 05/01/2020)
18 NOTICE OF CLERICAL ERROR: Upon further review, a determination has been made that this case is not appropriate for the issuance of a report and recommendation by a Magistrate Judge pursuant to General Order 0507. Therefore, all filings should be directed to Judge Percy Anderson for review. The case will now reflect the initials of the transferee Judge 8:20cv-00835 PA(GJSx). (rn) (Entered: 05/01/2020)
19 NOTICE OF DEFICIENCIES in Request to Issue Summons RE: Summons Request, 4 . The following error(s) was found: The caption of the summons must match the caption of the complaint verbatim. If the caption is too large to fit in the space provided, enter the name of the first party and then write see attached.Next, attach a face page of the complaint or a second page addendum to the Summons. The summons cannot be issued until this defect has been corrected. Please correct the defect and re-file your request. (lh) (Entered: 05/04/2020)
20 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus,,,,, 1 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/04/2020)
21 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus,,,,, 1 filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/04/2020)
26 21 DAY Summons Issued re Petition for Writ of Habeas Corpus, 1 as to defendant Orange County, California. (mrgo) (Entered: 05/05/2020)
27 21 DAY Summons Issued re Petition for Writ of Habeas Corpus, 1 as to defendant Don Barnes. (mrgo) (Entered: 05/05/2020)
22 APPLICATION of Non-Resident Attorney Clara Spera to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia

05/05/2020 05/05/2020 05/05/2020 05/05/2020

Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333630) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration Clara Spera, # 2 Declaration Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
23 APPLICATION of Non-Resident Attorney Cristina M. Becker Ellis to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333703) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration of Cristina Becker, # 2 Declaration of Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
24 APPLICATION of Non-Resident Attorney Olivia Harper Ensign to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333761) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration of Olivia Ensign, # 2 Declaration of Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
25 APPLICATION of Non-Resident Attorney Somil B. Trivedi to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26333835) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration of Somil Trivedi, # 2 Declaration of Peter Eliasberg, # 3 Proposed Order) (Eliasberg, Peter) (Entered: 05/05/2020)
28 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Olivia Harper Ensign to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, 24 , APPLICATION of Non-Resident Attorney Cristina M. Becker Ellis to

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Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Tra 23 . The following error(s) was/were found: Local Rule 83-2.1.3.3(a) Application not complete: state and/or federal courts to which the applicant has been admitted are not listed. Application is incomplete. State or federal courts where attorneys are admitted is blank. DJ and MJ initials missing. (Thrasher, Lupe) (Entered: 05/05/2020)
29 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Clara Spera to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagne 22 , APPLICATION of Non-Resident Attorney Somil B. Trivedi to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don 25 . The following error(s) was/were found: DJ and MJ initials missing. (Thrasher, Lupe) (Entered: 05/05/2020)
30 ORDER by Judge Percy Anderson: granting 22 Non-Resident Attorney Clara Spera APPLICATION to Appear Pro Hac Vice on behalf of All Plaintiffs, designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)
31 ORDER by Judge Percy Anderson: granting 23 Non-Resident Attorney Cristina M. Becker Ellis APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner., designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)
32 ORDER by Judge Percy Anderson: granting 24 Non-Resident Attorney Olivia Harper Ensign APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner, designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)
33 ORDER by Judge Percy Anderson: granting 25 Non-Resident Attorney Somil Trivedi APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner., designating Peter J Eliasberg as local counsel. (et) (Entered: 05/06/2020)
34 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 19-03Related Case- filed. Related Case No: 5:18-cv-02604 JGB(SHKx). Case transferred from Judge Percy Anderson and Magistrate Judge Gail J.

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Standish to Judge Jesus G. Bernal and Magistrate Judge Shashi H. Kewalramani for all further proceedings. The case number will now reflect the initials of the transferee Judge 8:20-cv-00835 JGB(SHKx). Signed by Judge Jesus G. Bernal (rn) (Entered: 05/06/2020)
35 NOTICE of Related Case(s) filed by Defendants Don Barnes, Orange County, California. With Exhibit and Certificate of Service Related Case(s): 8:19-cv-00258-JVS-KES (Attachments: # 1 Exhibit A)(Dunn, D) (Entered: 05/07/2020)
36 OBJECTIONS to Transferring Case purs GO 19-03 (Related Case)(CV34), 34 , Notice of Related Case(s), 15 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/07/2020)
37 PROOF OF SERVICE Executed by Plaintiff Cynthia Campbell, Michael Seif, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, Mark Trace, Melissa Ahlman, Javier Esparza, Don Wagner, Pedro Bonilla, upon Defendant Don Barnes served on 5/6/2020, answer due 5/27/2020. Service of the Summons and Complaint were executed upon LEANA GUZMAN, SECRETARY/AUTHORIZED TO ACCEPT SERVICE in compliance with statute not specified by personal service.Original Summons NOT returned. (Kamin, Mitchell) (Entered: 05/08/2020)
38 PROOF OF SERVICE Executed by Plaintiff Cynthia Campbell, Michael Seif, Monique Castillo, Cecibel Caridad Ortiz, Daniel Kauwe, Mark Trace, Melissa Ahlman, Javier Esparza, Don Wagner, Pedro Bonilla, upon Defendant Orange County, California served on 5/6/2020, answer due 5/27/2020. Service of the Summons and Complaint were executed upon DORA GUILLEN, DEPUTY CLERK/AUTHORIZED TO ACCEPT SERVICE in compliance with statute not specified by personal service.Original Summons NOT returned. (Kamin, Mitchell) (Entered: 05/08/2020)
39 OBJECTIONS to Notice of Related Case(s) 35 -- Plaintiffs' Objection to Defendants' Notice of Related Case, filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Exhibit A to Plaintiffs' Objection to Defendants' Notice of Related Case, # 2 Exhibit B to Plaintiffs' Objection to Defendants' Notice of Related Case)(Kamin, Mitchell) (Entered: 05/09/2020)
40 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Service of Summons and Complaint Returned Executed (21 days), 37 , Service of Summons and Complaint Returned Executed (21 days) 38 . The following error(s) was/were found: The judge's initials are incorrect and should be JGB(SHKx). SACV20-835-JGB(SHKx). In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other

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action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (twdb) (Entered: 05/11/2020)
41 EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Memorandum, # 2 Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit BB, # 31 Exhibit CC, # 32 Exhibit DD, # 33 Exhibit EE, # 34 Exhibit FF, # 35 Exhibit GG, # 36 Exhibit HH, # 37 Exhibit II, # 38 Exhibit JJ, # 39 Exhibit KK, # 40 Exhibit LL, # 41 Exhibit MM, # 42 Exhibit NN) (Kamin, Mitchell) (Entered: 05/11/2020)
42 NOTICE OF MOTION AND MOTION to Certify Class filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Memorandum, # 2 Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y) (Kamin, Mitchell) (Entered: 05/11/2020)
43 SCHEDULING NOTICE by Judge Jesus G. Bernal. On May 11, 2020, Plaintiffs file an Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction. The Court hereby orders Defendants to file a response no later than Thursday, May 14, 2020. Thereafter, the Court will issue a hearing date for oral argument. IT IS SO ORDERED THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 05/12/2020)
44 Opposition In Opposition re: EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail 41 With Supporting Declarations, Exhibits and Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Memorandum MPA, # 2 Declaration Martin Ramirez, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G,

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# 10 Declaration Joseph Balicki, # 11 Exhibit A, # 12 Exhibit B, # 13 Exhibit C, # 14 Exhibit D, # 15 Declaration C. Hsien Chiang, # 16 Exhibit A, # 17 Exhibit B, # 18 Exhibit C, # 19 Exhibit D, # 20 Exhibit E, # 21 Exhibit F, # 22 Declaration D. Kevin Dunn)(Dunn, D) (Entered: 05/12/2020)
45 REQUEST FOR JUDICIAL NOTICE In Support of Opposition to Plaintiffs Ex Parte Application for Temporary Restraining Order and/or Motion for Preliminary Injunction [ECF 41].With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Dunn, D) (Entered: 05/12/2020)
46 Evidentiary Objections In Opposition re: EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail 41 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/12/2020)
47 Opposition In Opposition re: NOTICE OF MOTION AND MOTION to Certify Class 42 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Memorandum MPA)(Dunn, D) (Entered: 05/12/2020)
48 Evidentiary Objections In Opposition re: NOTICE OF MOTION AND MOTION to Certify Class 42 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/12/2020)
49 REPLY EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail 41 Reply in Support of Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/13/2020)
50 REPLY NOTICE OF MOTION AND MOTION to Certify Class 42 -Reply in Support of Motion for Provisional Class Certification filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Exhibit A - Declaration of David Mejia Sanchez, # 2 Exhibit B - Declaration of Jeffrey Davis, # 3 Exhibit C- Declaration of Jaime Herrera, # 4 Exhibit D - Declaration of Melissa Ahlman, # 5 Exhibit E - Declaration of Mark Trace, # 6 Exhibit F - Declaration of Cynthia Campbell, # 7 Exhibit G Declaration of Monique Castillo)(Kamin, Mitchell) (Entered: 05/14/2020)
51 SCHEDULING NOTICE AND ORDER by Judge Jesus G. Bernal. The Court hereby sets a telephonic hearing on Tuesday, May 19, 2020, at 9:00

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a.m., to hear argument on Plaintiffs' Ex-Parte Application for Temporary Restraining Order (Dkt. No. 41) and Motion for Provisional Class Certification (Dkt. No. 42). The courtroom deputy clerk shall e-mail the attorneys of record the telephone conference number 24 hours before the hearing date. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 05/14/2020)
52 APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26461517) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Benjamin, Brittany) (Entered: 05/15/2020)
53 RESPONSE filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagnerto Objection/Opposition (Motion related), 46 re: Defendants' Evidentiary Objections to Plaintiffs' Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kamin, Mitchell) (Entered: 05/16/2020)
54 RESPONSE filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagnerto Objection/Opposition (Motion related) 48 re: Defendants' Evidentiary Objections to Plaintiffs' Motion to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kamin, Mitchell) (Entered: 05/16/2020)
55 SCHEDULING NOTICE AND ORDER by Judge Jesus G. Bernal. The Court hereby changes the time of the telephonic hearing on Plaintiffs' ExParte Application for Temporary Restraining Order (Dkt. No. 41) and Motion for Provisional Class Certification (Dkt. No. 42) on Tuesday, May 19, 2020, from 9:00 a.m. to 11:00 a.m. The courtroom deputy clerk shall e-mail the attorneys of record the telephone conference number 24 hours before the hearing date. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (npo) TEXT ONLY ENTRY (Entered: 05/18/2020)
56 STANDING ORDER upon filing of the complaint by Judge Jesus G. Bernal. (ima) (Entered: 05/18/2020)
57 SUPPLEMENT to EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail 41 -- Supplemental Evidence in Support of Plaintiffs Ex Parte Application for Temporary Restraining Order and

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Motion for Preliminary Injunction filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Exhibit A - Supplemental Declaration of Melissa Ahlman, # 2 Exhibit B - Supplemental Declaration of Charles Lucious, # 3 Exhibit C - Supplemental Declaration of David Mejia Sanchez, # 4 Exhibit D - Supplemental Declaration of Michael Seif, # 5 Exhibit E - Supplemental Declaration of Donald Timmons, # 6 Exhibit F - Supplemental Declaration of Vernell White)(Kamin, Mitchell) (Entered: 05/18/2020)
58 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don 52 . The following error(s) was/were found: Local Rule 83-2.1.3.3(b) Proposed order not attached. Attorney Brittany L. Benjamin is not admitted to the Central District of California and cannot act as local counsel. Attorney was notified on 5/1/20 of her status with this Court. (Thrasher, Lupe) (Entered: 05/18/2020)
59 APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26483389) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 05/18/2020)
60 ORDER GRANTING APPLICATION of Non-Resident Attorney Stacey K. Grigsby to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC26483389) and designating Britanny L Benjamin as local counsel 59 by Judge Jesus G. Bernal (lc) (Entered: 05/19/2020)
61 DECLARATION of Joseph Balicki In Support of Opposition to EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail 41 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Dunn, D) (Entered: 05/19/2020)
62 MINUTES OF Telephonic Hearing on: (1) Motion for Provisional Class Certification 42 and (2) Ex-Parte Application for Temporary Restraining Order 41 held before Judge Jesus G. Bernal: Counsel make their

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appearances. The Court hears argument and takes the matters under submission. Court Reporter: Phyllis A. Preston. (lc) (Entered: 05/19/2020)
63 DECLARATION of Dr. Joe Goldenson In support of EX PARTE APPLICATION for Temporary Restraining Order as to Implement Protections Against COVID-19 for Individuals Held at the OC Jail 41 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Stubbs, Cassandra) (Entered: 05/20/2020)
64 STIPULATION Extending Time to Answer the complaint as to Don Barnes answer now due 6/3/2020; Orange County, California answer now due 6/3/2020, re Petition for Writ of Habeas Corpus,,,,, 1 filed by Defendants Don Barnes; Orange County, California.(Watson, Kayla) (Entered: 05/26/2020)
65 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: ORDER 1) GRANTINGINPART and DENYINGINPART Plaintiffs Application for Temporary Restraining Order or Preliminary Injunction 41 ; and (2) GRANTING Plaintiffs Motion for Provisional Class Certification 42 . (SEE DOCUMENT FOR SPECIFICS AND LIST OF RELIEF AND OTHER INFORMATION THEREIN). (lc) (Entered: 05/26/2020)
66 EX PARTE APPLICATION to Stay Case pending Appeal re May 26, 2020 Order Order (1) GRANTINGINPART and DENYINGINPART Plaintiffs Application [ECF 65] With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration Kayla N. Watson, # 3 Declaration C. Hsien Chiang, M.D., # 4 Declaration Joseph Balicki, # 5 Proposed Order) (Watson, Kayla) (Entered: 05/27/2020)
67 REQUEST FOR JUDICIAL NOTICE re EX PARTE APPLICATION to Stay Case pending Appeal re May 26, 2020 Order Order (1) GRANTINGINPART and DENYINGINPART Plaintiffs Application [ECF 65] With Certificate of Service 66 With Certificate of Service filed by Defendants Don Barnes, Orange County, California. (Attachments: # 1 Exhibit A)(Watson, Kayla) (Entered: 05/27/2020)
68 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Don Barnes, Orange County, California. Appeal of Order on Motion to Certify Class Action, 65 . (Appeal Fee - $505 Fee Paid, Receipt No. ACACDC-26597999.) (Watson, Kayla) (Entered: 05/28/2020)
69 TRANSCRIPT ORDER re: Court of Appeals case number TBD, as to Defendants Don Barnes, Orange County, California for Court Reporter. Court will contact Simon Perng at simon.perng@coco.ocgov.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Watson, Kayla) (Entered: 05/28/2020)

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70 MEMORANDUM in Opposition to EX PARTE APPLICATION to Stay Case pending Appeal re May 26, 2020 Order Order (1) GRANTINGINPART and DENYINGINPART Plaintiffs Application [ECF 65] With Certificate of Service 66 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 05/28/2020)
71 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 20-55568 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 68 as to defendants Don Barnes, Orange County, California. (twdb) (Entered: 05/29/2020)
72 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order DENYING Defendants Ex Parte Application to Stay Case 66 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 06/02/2020)
73 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendants Don Barnes, Orange County, California. Motion set for hearing on 7/13/2020 at 09:00 AM before Judge Jesus G. Bernal. (Leeds, Rebecca) (Entered: 06/03/2020)
74 REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION AND MOTION to Dismiss Case 73 filed by Defendants Don Barnes, Orange County, California. (Leeds, Rebecca) (Entered: 06/03/2020)
75 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Don Barnes, Orange County, California. CCA # 20-55568. We have received appellants' supplemented emergency motion at Docket Entry No. 8 seeking to stay the district court's May 26, 2020 order pending resolution of this appeal. Appellees response to the emergency motion is due June 8, 2020. Appellants' optional reply is due June 10, 2020. To the extent that appellants' emergency motion requests an immediate stay of the district court's May 26, 2020 order pending resolution of the emergency motion, the request is denied. (car) (Entered: 06/04/2020)
76 TRANSCRIPT for proceedings held on 5/19/20. Court Reporter: Phyllis Preston, stenojag@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 6/30/2020. Redacted Transcript Deadline set for 7/10/2020. Release of Transcript Restriction set for 9/8/2020. (Preston, Phyllis) (Entered: 06/09/2020)
77 NOTICE OF FILING TRANSCRIPT filed for proceedings 5/19/20 re Transcript 76 THERE IS NO PDF DOCUMENT ASSOCIATED WITH

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THIS ENTRY. (Preston, Phyllis) TEXT ONLY ENTRY (Entered: 06/09/2020)
78 NOTICE of First Amended Complaint filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 06/12/2020)
79 First AMENDED COMPLAINT against Defendants All Plaintiffs amending Petition for Writ of Habeas Corpus,,,,, 1 , filed by Plaintiffs Cynthia Campbell, Monique Castillo, Daniel Kauwe, Melissa Ahlman, Javier Esparza, Pedro Bonilla (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-A, # 9 Exhibit H-B, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG, # 35 Exhibit HH, # 36 Exhibit II, # 37 Exhibit JJ, # 38 Exhibit KK, # 39 Exhibit LL, # 40 Exhibit MM, # 41 Exhibit NN, # 42 Exhibit OO)(Kamin, Mitchell) (Entered: 06/12/2020)
80 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Don Barnes, Orange County, California. CCA # 20-55568. Appellants' emergency motion to stay the district court's May 26, 2020 order is denied. A written order giving the courts reasoning will follow in due course. Appellants' emergency motion to supplement the record on appeal is denied. However, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. [See document for more details.] (mat) (Entered: 06/15/2020)
81 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Case 73 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 06/15/2020)
82 Notice of Withdrawal of Motion to Dismiss Case 73 , Request for Judicial Notice 74 filed by Defendants Don Barnes, Orange County, California. (Leeds, Rebecca) (Entered: 06/16/2020)
84 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55568. We deny the motion to stay, but remand for the limited purpose of allowing the district court to consider whether changed circumstances justify modifying or dissolving the injunction. Accordingly,

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we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. In the event such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate. The previously established briefing schedule remains in effect. IT IS SO ORDERED. [See document for all complete details.] (mat) (Entered: 06/19/2020)
83 NOTICE OF MOTION AND MOTION to Expedite Discovery -Plaintiffs' Notice of Motion and Motion for Limited Expedited Discovery; Memorandum of Points and Authorities, filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. Motion set for hearing on 6/29/2020 at 01:00 PM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Kamin, Mitchell) (Entered: 06/18/2020)
85 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to Expedite Discovery 83 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (twdb) (Entered: 06/19/2020)
86 EX PARTE APPLICATION to Withdraw Preliminary Injunction Order on Motion to Certify Class Action, 65 filed by Defendants Don Barnes, Orange County. (Attachments: # 1 Memorandum of Points & Authorities in Support of Motion to Dissolve Preliminary Injunction, # 2 Declaration of Kayla N. Watson, # 3 Declaration of Dr. Chiang, # 4 Declaration of Cpt. Ramirez, # 5 Declaration of Cpt. Von Nordheim, # 6 Declaration of Cpt. Rich, # 7 Declaration of Sgt. Hennessey, # 8 Declaration E. Winger) (Watson, Kayla) (Entered: 06/19/2020)
87 NOTICE OF LODGING filed June 22, 2020 with Certificate of Service re EX PARTE APPLICATION to Withdraw Preliminary Injunction Order on Motion to Certify Class Action, 65 86 (Attachments: # 1 Proposed Order)(Watson, Kayla) (Entered: 06/22/2020)
88 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS RE: Deficiency in Electronically Filed Documents (G-112A) - optional html form,, 85 by Deputy Clerk of Court. The document is accepted as filed. The Court hereby resets the hearing date to July 20, 2020, at 9:00 a.m. A

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separate ex parte application must be filed if the parties wish to advance the hearing date. (iva) (Entered: 06/23/2020)
89 EX PARTE APPLICATION to Shorten Time for Hearing on to 6/29/2020 -- Plaintiffs Ex Parte Application to Immediately Set Hearing Date to June 29, 2020 on Plaintiffs Motion for Limited Expedited Discovery; or in the Alternative, to Set Expedited Hearing for Plaintiffs Motion, filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Memorandum in Support of Ex Parte Application, # 2 Exhibit A, # 3 Proposed Order) (Kamin, Mitchell) (Entered: 06/23/2020)
90 DECLARATION of C. Hsien Chiang, M.D. In Support of EX PARTE APPLICATION to Withdraw Preliminary Injunction Order on Motion to Certify Class Action, 65 86 With Certificate of Service filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 06/24/2020)
91 Opposition in Opposition to re: NOTICE OF MOTION AND MOTION to Expedite Discovery -- Plaintiffs' Notice of Motion and Motion for Limited Expedited Discovery; Memorandum of Points and Authorities, 83 , EX PARTE APPLICATION to Shorten Time for Hearing on to 6/29/2020 -Plaintiffs Ex Parte Application to Immediately Set Hearing Date to June 29, 2020 on Plaintiffs Motion for Limited Expedited Discovery; or in the Alternative, to Set Expedited Hea 89 With Certificate of Service filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 06/24/2020)
92 ANSWER to Amended Complaint/Petition,,,, 79 With Certificate of Service filed by Defendants Don Barnes, Orange County.(Leeds, Rebecca) (Entered: 06/26/2020)
93 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order (1) DENYING Defendants Ex Parte Application to Dissolve Injunction (Dkt. No. 86 ); (2) GRANTING Plaintiffs Motion for Expedited Discovery (Dkt. No. 83 ); (3) DENYING Plaintiffs Ex Parte Application to Shorten Time (Dkt. No. 89 ); and (4) VACATING the July 20, 2020 Hearing. ORDERS that by July 8, 2020, (1) Defendants will serve responses to all outstanding written discovery, (2) the parties will agree on a date for inspection of the Jail to be no later than July 15, 2020, and (3) the parties will agree on a time and date for the video depositions of Erin Winger, Dr. C. Hsien Chiang, and Commander Joseph Balicki to be no later than July 15, 2020; SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 06/26/2020)
94 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Don Barnes, Orange County. Appeal of Order on Motion to Expedite,,,, Order on Motion to Withdraw,,,, Order on Motion to Shorten Time for Hearing,,, 93 . (Appeal Fee - $505 Fee Paid, Receipt No.

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ACACDC-27000595.) (Attachments: # 1 Exhibit ECF 93 & 65, # 2 Supplement Forms 1 & 6)(Watson, Kayla) (Entered: 06/29/2020)
95 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55568. Appellants' urgent motion to stay the district court's May 26, 2020 order is denied. We lack jurisdiction to review the district court's June 26, 2020 order denying appellants' ex parte request absent the filing of a new or amended notice of appeal. [See document for all details.](mat) (Entered: 07/01/2020)
96 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 20-55668 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 94 as to defendants Don Barnes, Orange County. (twdb) (Entered: 07/02/2020)
97 STATUS REPORT Defendants' Court Ordered Weekly Update for the Week of July 3, 2020 filed by Defendants Don Barnes, Orange County. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Watson, Kayla) (Entered: 07/03/2020)
99 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55668. In light of these circumstances, Defendants have not demonstrated a strong likelihood of success in showing the district court abused its discretion in denying the motion to dissolve the injunction as premature. We therefore deny Defendants' emergency motion to stay the preliminary injunction (Docket Entry No. 2). The previously established briefing schedule remains in effect. IT IS SO ORDERED. [See document for more details.] (mat) (Entered: 07/06/2020)
98 APPLICATION of Non-Resident Attorney Sarah Hinger to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27082640) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 07/06/2020)
100 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Sarah Hinger to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagn 98 . The following error(s) was/were found: Local Rule 83-2.1.3.3(b) Proposed order not attached. (lom) (Entered: 07/07/2020)
101 APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia

07/07/2020
07/07/2020
07/08/2020 07/10/2020
07/10/2020 07/10/2020

Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-27104121) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 07/07/2020)
102 APPLICATION of Non-Resident Attorney Sarah Hinger to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Previously Paid on 7/6/2020, Receipt No. 27082640) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 07/07/2020)
103 APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Previously Paid on 7/7/2020, Receipt No. 27104121) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 07/07/2020)
104 ORDER by Judge Jesus G. Bernal: Granting 102 Non-Resident Attorney Sarah Hinger APPLICATION to Appear Pro Hac Vice on behalf of Ahlman et al. Plaintiffs, designating Mitchell A. Kamin as local counsel. (twdb) (Entered: 07/08/2020)
105 APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $400 Previously Paid on 7/7/2020, Receipt No. 27104121) filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Kamin, Mitchell) (Entered: 07/10/2020)
106 STATUS REPORT With Certificate of Service filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 07/10/2020)
107 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wag 105 . The following error(s) was/were found: Incorrect document attached to the

07/13/2020
07/13/2020
07/17/2020 07/24/2020 07/31/2020 08/11/2020 08/27/2020 08/27/2020

docket entry. Other error(s) with document(s): Proposed Order was submitted, not an Application of Non-Resident Attorney to Appear in a Specific Case. (Thrasher, Lupe) (Entered: 07/12/2020)
108 NOTICE OF LODGING filed re Notice of Deficiency in Electronically filed Pro Hac Vice Application (G-112C) - optional html form,, 107 , APPLICATION of Non-Resident Attorney Marta P. Cook to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wag 105 (Attachments: # 1 Proposed Order, # 2 Caption Page)(Kamin, Mitchell) (Entered: 07/13/2020)
109 ORDER by Judge Jesus G. Bernal: Granting 101 Non-Resident Attorney Marta P. Cook APPLICATION to Appear Pro Hac Vice on behalf of Ahlman et al, Plaintiffs, designating Mitchell A. Kamin as local counsel. Granting 103 Non-Resident Attorney Marta P. Cook APPLICATION to Appear Pro Hac Vice on behalf of Ahlman et al, Plaintiffs, designating Mitchell A. Kamin as local counsel. (twdb) (Entered: 07/14/2020)
110 COMPLIANCE REPORT of ORANGE COUNTY SHERIFF DON BARNES RE PRELIMINARY INJUNCTION ORDER filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 07/17/2020)
111 STATUS REPORT Defendant's Compliance Report of Orange County Sheriff Don Barnes Re: Preliminary Injunction Order 65 : July 24, 2020 filed by Defendant Don Barnes. (Watson, Kayla) (Entered: 07/24/2020)
112 COMPLIANCE REPORT of ORANGE COUNTY SHERIFF DON BARNES RE PRELIMINARY INJUNCTION ORDER filed by Defendants Don Barnes, Orange County. (Watson, Kayla) (Entered: 07/31/2020)
113 Joint STIPULATION for Protective Order filed by Defendants Don Barnes, Orange County. (Attachments: # 1 Proposed Order)(Watson, Kayla) (Entered: 08/11/2020)
114 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 5 days, filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner.. (Kamin, Mitchell) (Entered: 08/27/2020)
115 REQUEST for ADR Procedure No. 1 filed. Parties request to Appear Before Honorable Shashi H. Kewalramani for settlement proceedings. Filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner.(Kamin, Mitchell) (Entered: 08/27/2020)

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116 REQUEST for ADR Procedure No. 2 filed. Parties request to appear before a neutral selected from the court's Mediation Panel for mediation. Filed by Defendant Don Barnes(Watson, Kayla) (Entered: 08/28/2020)
117 APPLICATION for Protective Order filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Redline)(Kamin, Mitchell) (Entered: 08/28/2020)
118 VIDEO SCHEDULING NOTICE Re Protective Order Dispute Video Conference set for 9/8/2020 11:00 AM before Magistrate Judge Shashi H. Kewalramani. The participating parties have already been provided with the video link. The public may access this hearing by dialing +1 323-8139520 Conference ID: 446 294 882#.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dc) TEXT ONLY ENTRY (Entered: 09/01/2020)
119 PROTECTIVE ORDER RE: STIPULATED PROTECTIVE ORDER REGARDING PRODUCTIONOF CONFIDENTIAL DISCOVERY PURSUANT TO PLAINTIFFS' DISCOVERY REQUESTS by Magistrate Judge Shashi H. Kewalramani, re Stipulation for Protective Order 113 (dc) (Entered: 09/03/2020)
120 MINUTES OF denying 117 Application for Protective Order; Telephone Conference held before Magistrate Judge Shashi H. Kewalramani: Following discussion between the Court and Counsel, parties are to provide a stipulated protective order by September 30, 2020, in a single word document setting out the positions of the parties in a red-lined format. If the parties cannotagree on the terms of a protective order, then a continued hearing on the matter will be held on October 2, 2020 at 9:00 a.m. to address the remaining issues Court Recorder: MS Teams. (dc) (Entered: 09/09/2020)
121 EX PARTE APPLICATION of Non-Resident Attorney Laura Beth Cohen to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-28193269) filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 09/22/2020)
122 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: EX PARTE APPLICATION of Non-Resident Attorney Laura Beth Cohen to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Tr 121 . The following error(s) was/were found: Incorrect event selected. Correct event

09/28/2020
09/28/2020
09/29/2020 09/29/2020 10/02/2020 10/05/2020

is Appear Pro Hac Vice (G-64) Other error(s) with document(s): Document is not an EX PARTE document, but is an Application. (Thrasher, Lupe) (Entered: 09/23/2020)
123 APPLICATION of Non-Resident Attorney Joseph Longley to Appear Pro Hac Vice on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-28274593) filed by Plaintiffs/Petitioners Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order re Joseph Longley Application for Pro Hac Vice) (Eliasberg, Peter) (Entered: 09/28/2020)
124 MINUTES OF ORDER RE: DEPOSITION DISCOVERY DISPUTE held before Magistrate Judge Shashi H. Kewalramani. At the request of the parties, the Court held a discovery dispute. The parties will continue to further meet and confer to explore the possibility of allowing Plaintiff's counsel to meet and prepare their incarcerated clients, who are in the custody of the Orange County Jail, for depositions in this matter. The parties are to provide an update, via e-mail, to the Court by 12:00 p.m. on Wednesday, September 30, 2020, at which time the Court may set a further hearing on the matter, if the parties are at an impasse. With respect to the outstanding protective order issue, set for hearing on October 2, 2020 at 9 a.m., the parties are to provide their respective positions by 12:00 p.m. on Thursday, October 1, 2020. Court Recorder: MS TEAMS 9/28/20. (hr) (Entered: 09/28/2020)
125 VACATING SCHEDULING NOTICE at the request of the parties, the previously scheduled discovery dispute hearing for October 2, 2020 9:00 a.m. has been terminated. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dc) TEXT ONLY ENTRY (Entered: 09/29/2020)
126 ORDER by Judge Jesus G. Bernal: granting 121 Non-Resident Attorney Laura Beth Cohen APPLICATION to Appear Pro Hac Vice on behalf of for Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Orange County, Cecibel Caridad Ortiz, Michael Seif, Mark Trace and Don Wagner, designating Mitchell A Kamin as local counsel. (lom) (Entered: 09/29/2020)
127 STIPULATION for Protective Order filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Proposed Order - Revised Proposed Protective Order)(Kamin, Mitchell) (Entered: 10/02/2020)
128 REVISED STIPULATION AND PROTECTIVE ORDER REGARDING PRODUCTION OF CONFIDENTIAL DISCOVERY by Magistrate Judge

10/06/2020 10/15/2020 11/12/2020 11/17/2020 11/24/2020
12/08/2020

Shashi H. Kewalramani re Stipulation for Protective Order 127 . (see document for details) (hr) (Entered: 10/06/2020)
129 ORDER by Judge Jesus G. Bernal: Granting 123 Non-Resident Attorney Joseph Longley APPLICATION to Appear Pro Hac Vice on behalf of Melissa Ahlman, Daniel Kauwe,Michael Seif, Javier Esparza, Pedro Bonilla, Cynthia Campbell,Monique Castillo, Mark Trace, Cecibel Caridad Ortiz, and DonWagner, Plaintiffs, designating Peter J. Eliasberg as local counsel. (twdb) (Entered: 10/06/2020)
130 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 94 filed by Orange County, Don Barnes, Notice of Appeal to 9th Circuit Court of Appeals, 68 filed by Orange County, Don Barnes. CCA # 20-55568; 20-55668. Appellees motions to dismiss these appeals as moot (Docket Entry No. 37 in appeal No. 2055568, Docket Entry No. 11 in appeal No. 20-55668) are referred to the panel assigned to decide the merits of these appeals. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 10/16/2020)
131 INTERVENOR COMPLAINT against Defendants All Defendants, filed by Plaintiff- Intervenor Joseph Arreguin. (Attorney Richard Paul Herman added to party Joseph Arreguin(pty:intv))(Herman, Richard) (Entered: 11/12/2020)
132 MINUTES OF ORDER RE: DEPOSITION DISPUTE held before Magistrate Judge Shashi H. Kewalramani: As discussed on the record, the Court denies Plaintiff's request to exclude Defendant's representative during the deposition. Court Recorder: MS Teams. (dc) (Entered: 11/18/2020)
133 NOTICE of Appearance filed by attorney Corene Kendrick on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner (Attorney Corene Kendrick added to party Melissa Ahlman(pty:pla), Attorney Corene Kendrick added to party Pedro Bonilla(pty:pla), Attorney Corene Kendrick added to party Cynthia Campbell(pty:pla), Attorney Corene Kendrick added to party Monique Castillo(pty:pla), Attorney Corene Kendrick added to party Javier Esparza(pty:pla), Attorney Corene Kendrick added to party Daniel Kauwe(pty:pla), Attorney Corene Kendrick added to party Cecibel Caridad Ortiz(pty:pla), Attorney Corene Kendrick added to party Michael Seif(pty:pla), Attorney Corene Kendrick added to party Mark Trace(pty:pla), Attorney Corene Kendrick added to party Don Wagner(pty:pla))(Kendrick, Corene) (Entered: 11/24/2020)
134 VIDEO CONFERENCE SCHEDULING NOTICE Re: Discovery Dispute set for 12/8/2020 02:30 PM before Magistrate Judge Shashi H. Kewalramani. The parties have been provided with video link instructions. For public or audio phone access dial 323-813-9520,Phone Conference

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01/07/2021 01/11/2021

ID: 191 199 996# THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dc) TEXT ONLY ENTRY (Entered: 12/08/2020)
135 MINUTES OF ORDER RE: DEPOSITION SCHEDULING DISPUTE held before Magistrate Judge Shashi H. Kewalramani: Following discussion between the Courtand the parties, the Court set a further conference to discuss 30(b)(6) deposition dates and Topic 18 for December 9, 2020 at 11:00 a.m. The parties will continue to meet and confer to discuss Topic 18 as discussed on the record. Court Recorder: MS Teams. (dc) (Entered: 12/10/2020)
136 MINUTES OF ORDER RE: CONTINUED DEPOSITION DISPUTE held before Magistrate Judge Shashi H. Kewalramani: With respect to the remaining topic 18, the Court will hold in abeyance. If a further hearing is necessary, then the parties may contact the Court. Court Recorder: MS Teams. (dc) (Entered: 12/10/2020)
137 SCHEDULING NOTICE: At the request of the parties, a Conference regarding a discovery dispute is set for 1/4/2021 03:30 PM before Magistrate Judge Shashi H. Kewalramani. The video conference link has been provided to the parties. For public access or phone access dial: +1 323-813-9520 Phone Conference ID: 157 623 546# THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dc) TEXT ONLY ENTRY (Entered: 01/04/2021)
138 MINUTES OF ORDER RE: CONTINUED DISCOVERY DISPUTE held before Magistrate Judge Shashi H. Kewalramani: Following discussion between the Court and the parties, the Court orders for the deposition that was to take place on January 6, 2021 to occur on January 13, 2021 with no further delay, for the reasons stated on the record. Additionally, with respect to the Excel spreadsheet sought by Plaintiffs, the parties are to meet and confer regarding the line items sought on the Excel spreadsheet and Defendants are to provide the modified Excel spreadsheet accordingly, for the reasons set forth on the record. Court Recorder: MS Teams. (dc) (Entered: 01/05/2021)
139 Joint STIPULATION to Dismiss plaintiff Monique Castillo filed by plaintiff Melissa Ahlman.(Stubbs, Cassandra) (Entered: 01/07/2021)
140 NOTICE of Appearance filed by attorney Jazzirelle Hill on behalf of Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Javier Esparza, Daniel Kauwe, Mark Trace, Don Wagner (Attorney Jazzirelle Hill added to party Melissa Ahlman(pty:pla), Attorney Jazzirelle Hill added to party Pedro Bonilla(pty:pla), Attorney Jazzirelle Hill added to party Cynthia Campbell(pty:pla), Attorney Jazzirelle Hill added to party Javier Esparza(pty:pla), Attorney Jazzirelle Hill added to party Daniel Kauwe(pty:pla), Attorney Jazzirelle Hill added to party Mark Trace(pty:pla), Attorney Jazzirelle Hill added to party Don Wagner(pty:pla))(Hill, Jazzirelle) (Entered: 01/11/2021)

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02/02/2021 02/05/2021 02/11/2021 02/12/2021

141 MINUTES OF ORDER RE: CONTINUED DEPOSITION DISPUTE held before Magistrate Judge Shashi H. Kewalramani: Defendants' briefing in support of a protective order shall be filed by February 5, 2021 and shall not exceed 10-pages, excluding attachments. Plaintiffs 10-page opposition, exclusive of attachments, must be filed by February 12, 2021. Defendants optional 5-page reply will be due by February 17, 2021. Court Recorder: MS Teams. (dc) (Entered: 01/28/2021)
142 Notice of Appearance or Withdrawal of Counsel: for attorney Suzanne Esther Shoai counsel for Defendants Don Barnes, Orange County. Adding Suzanne E. Shoai as counsel of record for Don Barnes, in his official capacity as Sheriff of Orange County, California; and, Orange County, California for the reason indicated in the G-123 Notice. Filed by Defendants Don Barnes, in his official capacity as Sheriff of Orange County, California; and Orange County, California. (Attorney Suzanne Esther Shoai added to party Don Barnes(pty:dft), Attorney Suzanne Esther Shoai added to party Orange County(pty:dft))(Shoai, Suzanne) (Entered: 01/29/2021)
143 NOTICE OF MOTION AND MOTION to Amend Proposed Discovery Plan in 26(f) Report filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Javier Esparza, Daniel Kauwe, Mark Trace. Motion set for hearing on 3/8/2021 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Memorandum in Support of Motion to Amend Proposed Discovery Plan in 26(f) Report, # 2 Declaration of Stacy K. Grigsby in Support of Motion to Amend Proposed Discovery Plan in 26(f) Report, # 3 Proposed Order Granting Motion to Amend Proposed Discovery Plan in 26(f) Report) (Kamin, Mitchell) (Entered: 02/02/2021)
144 MEMORANDUM of Points and Authorities in Support filed by Defendants Don Barnes, Orange County. With Supporting Declarations and Exhibits Re: Telephone Conference, 141 (Attachments: # 1 Declaration Don Barnes, Orange County Sheriff-Coroner, # 2 Exhibit A, # 3 Declaration Suzanne E. Shoai, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D)(Leeds, Rebecca) (Entered: 02/05/2021)
145 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Amend Proposed Discovery Plan in 26(f) Report 143 With Supporting Declaration and Exhibit filed by Defendants Don Barnes, Orange County. (Attachments: # 1 Declaration Suzanne E. Shoai, # 2 Exhibit A)(Shoai, Suzanne) (Entered: 02/11/2021)
146 1.Memorandum of Points and Authorities in Opposition to Defendants' Motion for Protective Order Prohibiting Deposition of Defendant Don Barnes 144 filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner. (Attachments: # 1 Declaration Declaration of Stacey K. Grigsby, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F,

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# 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P)(Kamin, Mitchell) Modified on 2/17/2021 (dc). (Entered: 02/12/2021)
147 NOTICE OF LODGING filed Exhibits A-1 through A-8 re Objection/Opposition (Motion related),,, 146 (Kamin, Mitchell) (Entered: 02/13/2021)
148 PROOF OF SERVICE filed by Plaintiff Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, Don Wagner, re Notice of Lodging 147 Exhibits A-1 through A-8 served on 2/12/2021. (Kamin, Mitchell) (Entered: 02/13/2021)
149 TRANSCRIPT ORDER as to Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Javier Esparza, Daniel Kauwe, Mark Trace, Don Wagner for Court Smart (CS). Court will contact Ellen Chiulos at echiulos@cov.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the transcription company. (Kamin, Mitchell) (Entered: 02/16/2021)
150 TRANSCRIPT for proceedings held on 12/9/2020. Court Reporter/Electronic Court Recorder: EXCEPTIONAL REPORTING SERVICES, phone number 361-949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/9/2021. Redacted Transcript Deadline set for 3/19/2021. Release of Transcript Restriction set for 5/17/2021. (jlo) (Entered: 02/17/2021)
151 NOTICE OF FILING TRANSCRIPT filed for proceedings 12/9/2020 re Transcript 150 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jlo) TEXT ONLY ENTRY (Entered: 02/17/2021)
152 MEMORANDUM of Points and Authorities in Support filed by Defendants Don Barnes, Orange County. - Reply Memorandum of Points and Authorities in Support with proposed Order - Re: Memorandum of Points and Authorities in Support, 144 , Telephone Conference, 141 (Attachments: # 1 Proposed Order)(Shoai, Suzanne) (Entered: 02/17/2021)

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 Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-1, Page 1 of 25
No. 20-55668
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MELISSA AHLMAN, et al., Plaintiffs-Appellees v.
DON BARNES and ORANGE COUNTY, CALIFORNIA, Defendants-Appellants,
_______________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA NO. 8:20-cv-00835-JGB-SHK
_______________________________________ EMERGENCY MOTION UNDER CIRCUIT RULE 27-3
FOR STAY OF INJUNCTION STAY RELIEF NEEDED IMMEDIATELY OR
NO LATER THAN JULY 2, 2020 _______________________________________
LEON J. PAGE, COUNTY COUNSEL Laura D. Knapp, Supervising Deputy (SBN 162800)
D. Kevin Dunn, Senior Deputy (SBN 194604) Rebecca S. Leeds, Senior Deputy (SBN 221930)
Kayla N. Watson, Deputy (SBN 286423) 333 West Santa Ana Boulevard, Suite 407
Santa Ana, California 92701 Telephone: (714) 834-2057 Facsimile: (714) 834-2359
Email: kayla.watson@coco.ocgov.com Attorneys for Defendants-Appellants
i

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TABLE OF CONTENTS Page No.
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR STAY OF INJUNCTION......................................................................i TABLE OF CONTENTS...............................................................................ii TABLE OF AUTHORITIES........................................................................iii CIRCUIT RULE 27-3 CERTIFICATE........................................................ iv I. INTRODUCTION...................................................................................... 1 II. BACKGROUND ...................................................................................... 5 III. ARGUMENT........................................................................................... 7
A. THE DISTRICT COURT WAS PRESENTED EVIDENCE THAT THE PRELIMINARY INJUNCTION IS NO LONGER “NECESSARY” TO CORRECT A VIOLATION OF ANY FEDERAL RIGHT BUT DENIED MODIFICATION OR A HEARING ........................................................................................... 7
B. NEW FACTS AND SIGNIFICANT CHANGED CIRCUMSTANCES PRESENTED TO THE DISTRICT COURT WARRANT DISSOLVING THE PRELIMINARY INJUNCTION OR, AT A MINIMUM, A HEARING ........................ 9
C. NEW EVIDENCE WARRANTS THIS COURT STAYING THE INJUNCTION ........................................................................... 10 1. The Order is No Longer Reflective of Current Circumstances in a Rapidly Improving Environment ................. 10 2. Plaintiffs No Longer Face Any Prospect of Irreparable Harm .... 11 3. Comity Counsels Restraint Here and Warrants Presently Dissolving the Injunction ............................................................. 12
D. STAYING THE INJUNCTION WILL PRESERVE THE STATUS QUO AND NOT HARM PLAINTIFFS ............................. 13
IV. CONCLUSION .................................................................................. 15 CERTIFICATE OF SERVICE.................................................................... 15
ii

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TABLE OF AUTHORITIES

Cases

Page No.

Flores v. Huppenthal, 789 F.3d 994 (9th Cir. 2015)................................................................ 9

Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989)................................................................ 9

Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010) .......................................................................... 12

South Bay Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056 (U.S. May 29, 2020.) ............. 4, 12

U.S. ex rel. F.T.C. v. Bus. Recovery Servs. LLC, 488 F. App’x 188 (9th Cir. 2012) ....................................................... 9

Statutes 18 U.S.C. § 3626(a)(1) .................................................................................. 8 18 U.S.C. § 3626(a)(1)(B) ............................................................................. 8 18 U.S.C. § 3626(d)(4) .................................................................................. 9 18 U.S.C. § 3626(g)(7) .................................................................................. 7

iii

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CIRCUIT RULE 27-3 CERTIFICATE The undersigned counsel certifies that the following is the information required by Circuit Rule 27-3: (1) Telephone numbers and addresses of the attorneys for the
parties:

MITCHELL KAMIN (SBN 202788) mkamin@cov.com AARON LEWIS (SBN 284244) alewis@cov.com BRITTANY BENJAMIN (SBN 323968) bbenjamin@cov.com COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, CA 90067-4643 Telephone: (424) 332-4800 Facsimile: (424) 332-4749 CASSANDRA STUBBS (SBN 218849) cstubbs@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 201 W. Main St., Suite 402 Durham, NC 27701 Telephone: (919) 682-5659 Facsimile: (919) 682-5961

JOHN WASHINGTON (SBN 315991) jwashington@sshhlaw.com SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 Telephone: (310) 399-7040 Facsimile: (310) 399-7040 PETER ELIASBERG (SBN 189110) peliasberg@aclu.org AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St Los Angeles, CA 90017 Telephone: (213) 977-9500 PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000 Irvine, CA 92687 Telephone: (949) 824-0066

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STACEY GRIGSBY* sgrigsby@cov.com AMIA TRIGG** (SBN 282890) atrigg@cov.com COVINGTON & BURLING LLP One CityCenter 850 Tenth Street NW Washington, DC 20001 Telephone: (202) 662-6000 Facsimile: (202) 778-5906 OLIVIA ENSIGN* oensign@aclu.org CRISTINA BECKER* cbecker@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 201 W. Main St., Suite 402 Durham, NC 27701 Telephone: (919) 682-5659 Facsimile: (919) 682-5961

CARL TAKEI ctakei@aclu.org SOMIL TRIVEDI* strivedi@aclu.org CLARA SPERA* cspera@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 ZOE BRENNAN-KROHN** (SBN 324912) zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415)-343-0769 Facsimile: (415) 255-1478

(2) Facts showing the existence and nature of the emergency: On May 26, 2020, the District Court issued a mandatory injunction (ECF 651, the “Order”) against the Orange County Sheriff (“Sheriff”) and the County of Orange (“County” or collectively “Defendants”) requiring the Sheriff to implement COVID-19 protocols that (1) exceed CDC Interim Guidelines, (2) irreparably harms the Sheriff’s custodial operations, and (3) exacerbates the health, safety and security risks to both inmates and staff. ECF 65. On May 28, 2020, the Sheriff Appealed to this Court and Requested an Emergency Stay. ECF 68. On June 12, 2020, this Court

1 All references to ECF are to filings in the District Court case (8:20-cv00835-JGB-SHK), while references to Dkt. are to filings in the Court of Appeals case (20-55568).
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denied the stay but sua sponte issued an immediate remand of the matter to the District Court for consideration of further evidence regarding dissolving or modifying the injunction. Dkt. 16 & 19-1. This Court also issued a written decision, which included a lengthy and strenuous dissent, which would have granted the requested relief immediately.
Specifically, this Court ordered: Accordingly, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. In the event such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate. Id. To facilitate this Court’s remand instructions, on June 19, 2020 Appellants filed an ex parte application with the district court to dissolve the injunction or in the alternative, to set an evidentiary hearing on an expedited basis to allow further showing of evidence supporting dissolving the injunction. ECF 86. The application was supported by several declarations from Lieutenants and Sergeants at the Orange County Jails as well as Erin Winger and Dr. Chiang, the director of Correctional Health Services, attesting to only 6 remaining COVID cases at the jail, and that such cases were from new arrestees, not transmission among inmates. ECF 86-3. Moreover, Appellants supplemented this with information on June
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24, 2020 that there remained only 42 such cases, again, all from new arrestees. ECF 90. The evidence showed that there is currently zero transmission of COVID at the Orange County jails. Appellants-Defendants interposed Appellees’-Plaintiffs’ request for expedited discovery.
On June 26, 2020, the district court entirely denied any relief for Appellants and granted entirely Appellees’-Plaintiffs’ request for intrusive and expedited discovery. ECF 93.
This Order, unsupported in fact or law, should be immediately stayed. Many of the Order’s mandates are not found in the CDC Interim Guidelines and are infeasible to comply with as it would compromise the safety of inmates and staff at the Jail. Appellants-Defendants have requested—to no avail—that the District Court stay its mandatory injunction Order and now seek relief here.
(3) When and how counsel notified: The undersigned notified counsel for Appellees-Plaintiffs by email on June 30, 2020, of the Appellants [Sheriff and County of Orange]’ intention to file this Motion. Service will be effected by electronic service
2 This number is going to fluctuate day to day and there will always be COVID cases entering the Jail via new bookings as long as COVID exists within the community. The Sheriff has no control over that. No one has any control over that. The point of Appellants-Defendants reporting case numbers to the district court, was not only to show the significant decline in COVID cases but also to show that all of the COVID cases were coming from community spread, new bookings, and not from becoming infected in the Jail. Even if this number were to triple for example, it would not because the person became infected in the Jail, but because they became infected in the community and then were booked into custody for committing a crime.
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through the CM/ECF system. (4) Submissions to the District Court: Appellants-Defendants have not requested this specific emergency
relief from the district court as such request would be futile. (5) Decision requested by: A decision on the Emergency Motion for Stay is requested
immediately or no later than July 2, 20203, due to the Sheriffs’ inability to comply with every single mandate in the Preliminary Injunction Order and the threat of sanctions imposed by the District Court’s Order issued on June 26. ECF 93, p. 3, #6. Additionally, urgent relief is requested due to the mandatory nature of the injunction compelling the Sheriff to alter the status quo in ways not mandated by law, contrary to CDC recommendations and detrimental to the health, safety and security of Jail staff and inmates.
To be clear: 1) the Sheriff cannot comply with the May 26, 2020 Order [ECF 65] regarding matters that exceed CDC guidelines and 2) the Sheriff has already implemented the of CDC Guidelines which has resulted in ZERO transmissions at the Jails and should not be deemed contempt of a federal court order designed to protect inmates from COVID.
The Order should be stayed first, because it requires the Sheriff to comply with CDC Interim Guidelines (that are already being followed by the Sheriff), and which is not a basis to issue a preliminary injunction.
3 Appellants inadvertently filed their urgent motion to stay the district court’s June 26, 2020 Order under case no. 20-55568. This Court denied the request on jurisdictional grounds on June 29. See Dkt. 28. Appellants immediately thereafter filed a new notice of appeal on June 29 and this urgent Motion on July 1.
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Second, the Order mandates COVID-19 protocols that are not recommended or required by CDC Guidelines, such as: (1) providing 6 feet or more of spacing between inmates, (2) providing video conferencing with loved ones when quarantined, (3) daily laundering of inmate clothing, (4) daily temperature checks of the entire inmate population; (5) daily assessments of each inmate (through questioning) for COVID symptoms.
For example, the Sheriff has implemented 6 ft social distancing measures where possible. However the Sheriff CANNOT put each inmate in an individual cell. The Sheriff CANNOT provide each individual inmate his own dayroom time, in a dayroom that is not going to be used by another inmate at some time after he/she used it. Of course, the dayroom is cleaned in between use as recommended by the CDC Guidelines. Yet, the Sheriff CANNOT implement mandated 6 ft social distancing in the Jail, maintain all the cleaning protocols in between each use, and still operate a Jail.
As another example, the Sheriff in conjunction with Correctional Health Services (CHS), is performing temperature checks of incoming inmates, anyone who reports or exhibits symptoms and anyone entering the Jail for any reason. However the Sheriff CANNOT perform temperature checks of every single inmate in the Jail every day and still operate a Jail. Not only is it contrary to the CDC Guidelines as it creates more-fact-to-face contact between staff and inmates, and it is dangerous, but there is simply not enough hours in the day to feed everyone, provide everyone dayroom, provide everyone recreation time, provide everyone medical care, provide everyone enough time and space to use the phone, while also cleaning every
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room, high touch service, and telephone in between. The same goes for ordering the Sheriff/CHS to perform daily COVID assessments of every single inmate in the Jail on a daily basis. It is simply not possible to do.
Moreover, many items in the Order are infeasible to implement due to: (1) the physical design limitations of the jail facilities, (2) the number of inmates involved, and (3) the staffing (which is already stretched thin) required to safely carry out the Order.
In sum, the Order significantly and irreparably burdens the Sheriff with mandates not required by law, not found in the CDC Guidelines, which are unreasonable and infeasible for immediate compliance, and were based upon improper findings by the District Court.
For the foregoing reasons, the Order should be stayed to allow proper review by this Court.
Respectfully submitted, LEON J. PAGE, COUNTY COUNSEL KAYLA N. WATSON, DEPUTY

DATED: July 1, 2020

By __/S/______________________________ Kayla N. Watson, Deputy
Attorneys for Appellants-Defendants DON BARNES and ORANGE COUNTY, CALIFORNIA

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I. INTRODUCTION Without an immediate stay the District Court’s May 26, 2020, mandatory preliminary injunction (ECF 65, the “Order”), the Sheriff will continue to be required to implement unreasonable and unwarranted COVID-19 mitigation measures in the Orange County Jail (“OCJ”) under threat of federal court sanction. To be clear: 1) the Sheriff cannot meet the May 26 order regarding matters that exceed CDC guidelines and 2) customized implementation of CDC Guidelines that have resulted in ZERO transmissions at the jails should not be deemed contempt of a federal court order designed to protect inmates from COVID. It is the Sheriff’s contention that the District court on remand failed to consider any new evidence submitted by the Sheriff. To the contrary, despite the evidence of the incredible efforts by the Sheriff to reduce COVID in the Jails, the court simply stated even if the number was zero, an injunction would be warranted. ECF 93, p. 2-3. There is no support in the facts or law for such an order. The district court was presented with evidence that the number of positive COVID-19 inmates in the OCJ has decreased to four (4) cases in the entire Orange County jail population—and these are from new arrestees coming in from the community and not from transmission at the jails. ECF 90. This is due to the protocols put in place by the Sheriff. See ECF 86-1 and declarations submitted in support thereof. As of June 22, 2020 and June 24, 2020, the district court was presented with evidence in the form of declarations under penalty of perjury from both command staff overseeing the jails as well as the Director of Correctional Health Services attesting to the fact that COVID transmission had been eliminated from the jails and that the remaining four cases were due to new arrestees. ECF
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90, 86-1 thru 86-7. Moreover, all arrestees are quarantined a minimum of fourteen days to ensure COVID is not transmitted at the jail. Respondents presented no competing evidence.
On June 26, 2020, notwithstanding this Court’s remand instructions, the district court categorically denied all relief for Appellants, including but not limited to: 1) any modification of the May 26, 2020 Order, even as to mandates exceeding CDC Guidelines, 2) denying any evidentiary hearing to allow the Sheriff to present evidence to extricate itself from the Order, let alone on an expedited basis. Instead, the Court granted every request of Appellees-Plaintiffs for expedited discovery, including intrusive jail inspections, weekly reports, depositions, and expedited written discovery. ECF 93, p. 3.
Appellants respectfully and urgently request this Court’s intervention in the form of an immediate stay of the district court’s May 26, 2020 injunction. It does not appear Appellants can obtain relief without this Court’s direct and urgent intervention.
The district court found on declarations alone that: Dissolution of a preliminary injunction is only proper only if there has been a significant change that renders the original preliminary injunction inequitable. Alto v. Black, 738 F3d 1111, 1120 (9th Cir. 2013). Defendants insist that the rate of infection is now zero. (Application at 5.) However, they support this assertion with their own evidence and testimony from County employees. Certainly, the County employees are incentivized to submit evidence that will support the County’s position. ECF 93, page 2. Moreover, it does not appear that there is any evidence Appellants could present in the District Court that would support relief:
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[E]ven though Defendants now insist that there is zero transmission within the Jail, they acknowledge that there are still six active cases. (Application at 5.) As Defendants have previously demonstrated, six cases can rapidly become three hundred in the absence of sufficient mitigating measures. ECF 93, page 2. Appellants have never indicated or proposed “drawing down preventative measures” or “asking to be relieved of the obligation” to continue with CDC recommendations. Appellants are asking for the appropriate latitude to run their facilities, as has been continuously and successfully demonstrated based on the COVID-19 results, without the far-reaching federal judiciary. Indeed, the issue is whether there is a legal basis for a federal injunction premised on deliberate indifference under the Eighth Amendment when the district court has been presented evidence on remand that the Sheriff has eliminated transmission at the jails. Appellants have and will continue to affirmatively act to protect the health and well-being of the inmates and staff at the jail facilities. Without any credible evidence of a constitutional violation, the court is abusing its discretion in requiring weekly updates to Appellees regarding compliance with the injunction. This abuse of discretion is also demonstrated by the court’s admonishment that failure to comply with the entirety of the Order will result in sanctions. Implicit in the court’s admonishment is the assumption that OCSD has not substantially complied with the TRO, which is directly contracted by the stark flattening of the curve inside Orange County Jail facilities. Despite this evidence, the District Court found: Even if Defendants have dropped the transmission rate to zero, it is certainly not time yet to draw down preventative measures—unless Defendants consistently implement those steps outlined in the injunctive order, a second spike is likely occur.
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ECF 93, page 2 (emphasis added). Whether this is accurate as a public health statement or not is immaterial here. Again Appellants assert that the factual and legal basis that underpin the order, to the extent they ever existed, certainly do not now. As such, the District Court’s May 26, 2020 Order is not warranted and should be stayed. As recently reiterated by the U.S. Supreme Court on May 29, 2020, in the case of South Bay United Pentecostal Church v Newsom, No. 19A1044, 2020 WL 2813056 (U.S. May 29, 2020): Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” [citation.] When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” [citation.] Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. [citation.] That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. Id. Here, the District Court has allowed Appellees-Plaintiffs to continue to dictate the Sheriff’s administration of the jails despite evidence that the Sheriff has eliminated transmission of COVID at the jails. This Court should issue an immediate stay of the Order to prevent irreparable harm to the Sheriff from the Order. // // //
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II. BACKGROUND On April 30, 2020, ten inmates at the Orange County Jails (“OCJ”) filed a class action habeas corpus case seeking emergency injunctive relief against Defendants. ECF 1. Appellees-Plaintiffs claim that the Sheriff has failed to implement the Center for Disease Control Guidelines (“CDC Guidelines”) for custodial facilities and, as a result, Plaintiffs’ conditions of incarceration have put them all at imminent risk of serious illness or death from COVID-19. Id. On May 11, 2020, Appellees-Plaintiffs filed an ex parte application and motion for temporary restraining order and preliminary injunction seeking (1) mandated compliance with CDC Guidelines for COVID-19 in the OCJ, and (2) the immediate release of all “medically vulnerable” jail inmates. ECF 41-1. This Court set the matter for telephonic hearing on May 19, 2020. ECF 51, 55. On May 26, 2020, the Court issued its 21-page ruling, granting the Plaintiffs classwide injunctive relief and making findings. ECF 65. On May 27, 2020, Appellants’-Defendants filed an ex parte application to stay all proceedings pending appeal. ECF 66. The District Court denied Defendants’ Stay Application on June 2, 2020. ECF 72. Defendants then filed an Appeal in this Court (“COA”) under Case No. 20-55568 and moved for both an Emergency Stay and Stay Pending Appeal. ECF 68; Dkt. 1, 8. On June 4, 2020, this Court declined an Emergency Stay. Dkt. 10. On June 8, 2020, Plaintiffs filed a response opposing Defendants’ request for stay. Dkt. 13. On June 10, 2020, Defendants filed a Reply in support of Stay Pending Appeal and an Emergency Motion to Supplement the Record on Appeal. Dkt. 14, 15. On June 12, 2020, this Court denied Appellants’-Defendants’ stay application, however sua sponte remanded the case to this Court for the “limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or
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dissolution of the preliminary injunction.” Dkt. 16, 19-1. Meanwhile, in the District Court, on June 4, 2020, Defendants filed a motion
to dismiss Plaintiffs’ Complaint under Fed. R. Civ. P. 12(b)(6). ECF 73. On June 12, 2020, Plaintiffs filed a First Amended Complaint. ECF 79. On June 15, 2020, Plaintiffs oddly filed an opposition to Defendants’ motion to dismiss, even though their First Amended Complaint mooted the motion to dismiss. ECF 81. On June 16, 2020, prior to meeting and conferring with Defendants, Plaintiffs served Defendants with Plaintiffs' First Set of Interrogatories, Requests for Production of Documents, Notice of Inspection, and Deposition Notices for Commander Balicki, Dr. Chiang, and Ms. Winger. Thereafter, on June 18, 2020, Plaintiffs filed a Motion for Expedited Discovery alleging it is “limited in scope” when in fact the requests are premature, invasive, harassing and contrary to the spirit and letter of Fed. R. Civ. P. 26. ECF 83.
As of the filing of that Motion, there were only SIX (6) COVID positive inmates and for the preceding two weeks, all new COVID cases came from new arrestees being booked into the Jail. See ECF 86, p. 4; ECF 86-3, ¶¶ 6-7. This is a significant decrease in COVID positive cases. On May 19, 2020, the date of the hearing there were 161 COVID positives (ECF 65, p. 16). On May 26, 2020, the date the Order was issued there were 67 COVID positive inmates. Id. As of June 24, 2020, there were FOUR (4) COVID positive inmates and all are new arrestees. See Chiang Decl. ECF 90, ¶ 2. This further demonstrates that Defendants did not fall “significantly short of complying with the CDC Guidelines” (Dkt. 19-1, fn 8) prior to May 26, as it would be impossible for a correctional facility the size of the Orange County Jail, with multiple congregate living quarters, to make this type of significant progress as Defendants have done here.
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On June 26, 2020, the District Court denied all relief to Appellants, including the setting of any hearing to receive evidence to determine whether the injunction should be dissolved or modified. The district court instead granted every request of Appellees-Plaintiffs for expedited discovery, including jail inspections, weekly reports, depositions and written discovery. ECF 93. Though Appellees presented no competing evidence, the district court faulted Appellants for providing otherwise competent and admissible evidence and testimony from County employees, stating, “Certainly, the County employees are incentivized to submit evidence that will support the County’s position.” Id., at p. 3.
On June 29, 2020, Defendants filed a Notice of Appeal and commenced the current Appeal in this Court.
III. ARGUMENT A. THE DISTRICT COURT WAS PRESENTED EVIDENCE
THAT THE PRELIMINARY INJUNCTION IS NO LONGER “NECESSARY” TO CORRECT A VIOLATION OF ANY FEDERAL RIGHT BUT DENIED MODIFICATION OR A HEARING The Prison Litigation Reform Act (“PLRA”) specifically limits prospective relief to that which is “necessary.” It also provides that such relief must be “narrowly drawn” and be “the least intrusive means necessary” to correct a violation of a federal right. The PLRA defines prospective relief to mean “all relief other than compensatory monetary damages.” 18 U.S.C. § 3626(g)(7). Specifically, the PLRA provides: Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds
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that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1). In undertaking this analysis, a federal court must not only consider the “adverse impact on public safety or the operation of a criminal justice system caused by the relief,” it must give it “substantial weight” in the analysis. (B) . . . The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period. 18 U.S.C. § 3626(a)(1)(B). With respect to termination of prospective relief, the PLRA provides: (4) Termination or modification of relief.— Nothing in this section shall prevent any party or intervener from seeking modification or termination before the relief is terminable under paragraph (1) or (2), to the extent that modification or termination would otherwise be legally permissible. (e) Procedure for Motions Affecting Prospective Relief.— (1) Generally.— The court shall promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to prison conditions. Mandamus shall lie to
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remedy any failure to issue a prompt ruling on such a motion. 18 U.S.C. § 3626(d)(4). Defendants moved the district court pursuant to 18 U.S.C. § 3626(d)(4) to terminate the prospective relief issued in this case on May 26, 2020.
B. NEW FACTS AND SIGNIFICANT CHANGED CIRCUMSTANCES PRESENTED TO THE DISTRICT COURT WARRANT DISSOLVING THE PRELIMINARY INJUNCTION OR, AT A MINIMUM, A HEARING
Typically, a motion to modify or dissolve a preliminary injunction is limited to new facts or law, and consequently, “[a] motion to modify or dissolve an injunction cannot be used to challenge the imposition of the original injunction.” U.S. ex rel. F.T.C. v. Bus. Recovery Servs. LLC, 488 F. App’x 188, 189-90 (9th Cir. 2012). “On the other hand, a modification may be so fundamental to the original injunction, or may otherwise present issues so inextricable from the validity of the original injunction, that review must include the whole package.” Gon v. First State Ins. Co., 871 F.2d 863, 866-67 (9th Cir. 1989). “A court abuses its discretion when it refuses to modify an injunction or consent decree in light of a significant change either in factual conditions or in law that renders continued enforcement detrimental to the public interest.” Flores v. Huppenthal, 789 F.3d 994, 1001 (9th Cir. 2015) (quotation marks omitted).
When the preliminary injunction is with respect to jail conditions, the Prison Litigation Reform Act (“PLRA”) specifically limits prospective relief to that which is “necessary.” It provides:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal
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right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. Moreover, the PLRA provides that the court shall promptly rule on any motion to modify or terminate prospective relief in a civil action with respect to prison conditions. Mandamus shall lie to remedy any failure to issue a prompt ruling on such a motion. Pursuant to these provisions, Defendants moved to dissolve the preliminary injunction immediately on the facts shown in the application, or alternatively, to facilitate a prompt ruling on the matter, Defendants alternatively requested an expedited evidentiary hearing to further establish the facts supporting dissolving the Preliminary Injunction. This was denied entirely. C. NEW EVIDENCE WARRANTS THIS COURT STAYING THE INJUNCTION
1. The Order is No Longer Reflective of Current Circumstances in a Rapidly Improving Environment
At no point were there ever more that 219 COVID cases in the Jail (on any one day) (the “daily rate”). That date was May 5, 2020. By May 26, 2020, that relevant number—the daily rate, had already dove to 67. As of June 24, 2020, that number was only FOUR (4). ECF 90.
Because confusion can ensue by mingling the cumulative number and the daily rate, it bears repeating that even while the Sheriff eradicates COVID transmission from the Jails, the new arrestees that are positive or symptomatic are still increasing the cumulative numbers at the Jails. No matter what happens, Plaintiffs can always allege that there are “hundreds” of COVID cases at the jails, that the number is “soaring,” when looked at in one specific manner— cumulatively.
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Defendants submit that the dramatic decrease in the daily rate at the jails— continuing from the onset of COVID, through the district court’s Order and continuing to present—is a significant change in circumstances and new evidence supporting dissolving the injunction. Continuation of the injunction now is against the public interest because local officials, like the Sheriff, need the flexibility on the ground to adapt to the rapidly changing public health emergency without the external limitations of a federal court injunction. And the Sheriff has demonstrated here the success that can have.
In addition to COVID almost being eliminated from the current Jail population, additional facts have arisen - new positive cases are coming only from new bookings. Any remaining COVID cases at the jails are due to community spread before arriving at the jail, and not from being infected in the Jail. See Chiang Decl. ECF 90. The Sheriff, of course, has no control over the health status of anyone arrested by the Sheriff’s department or the numerous other arresting agencies that utilize the Jail. This significant change of circumstances can, we hope, show this Court that the Sheriff is not deliberately indifferent to the inmates in his charge, but rather, has provided extraordinary care, management and mitigation of this pandemic.
2. Plaintiffs No Longer Face Any Prospect of Irreparable Harm The daily rate has continued to plunge significantly. Prior to and following the district court’s order, the daily rate continued to plummet at the Jails (even while cumulative numbers would continue to rise) because the Sheriff aggressively and early-on, implemented the CDC Interim Guidelines. Because there is ZERO transmission of the virus currently spreading in the Jails, Plaintiffs no longer face any prospect of irreparable harm because—at least while at the Jail in the Sheriff’s
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care—they are isolated from community transmission of the virus that we all face in the general public.
3. Comity Counsels Restraint Here and Warrants Presently Dissolving the Injunction
The comity doctrine counsels lower federal courts to resist engagement in certain cases despite falling within their jurisdiction. The doctrine reflects:
[A] proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in separate ways. Fair Assessment, 454 U.S., at 112, 102 S.Ct. 177 (quoting Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). Levin v. Commerce Energy, Inc., 560 U.S. 413, 421 (2010) [int. quotations omitted]. Federal courts should resist administration of local jails without significant constitutional cause. South Bay Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056 (U.S. May 29, 2020.) The prospect of contempt presented when a local law enforcement agency is unable to take certain actions in the face of a federal injunction, dramatically limits the Sheriff’s options for successfully managing the crisis. It puts the Sheriff more toward managing legal exposure than maintaining laser focus on safety. For instance, a requirement that the Sheriff maintain all inmates 6 feet or more apart, access to daily showers and laundry, daily temperature checks and COVID assessments of every inmate, daily recreation, phone and video conferencing for quarantined inmates, while having to also sanitize between each use and ensure incompatible classifications of inmates do not mix, is a near impossible task. See ECF 86-7, Declaration of Sergeant Hennessey at ¶¶ 5-8. But it is also an unnecessary one. Simply permitting two
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inmates who are both COVID-free to share a cell and recreate/dayroom with that other inmate is not a factor for contagion of COVID, and is no different than roommates who do not social distance 6 feet from each other at all times in their shared COVID-free living situation. It allows the Sheriff to effectively utilize the available physical space and to provide adequate and necessary quarantine to the inmates that do need it, such as new arrestees and anyone who might subsequently display symptoms or test positive. The Sheriff has demonstrated the capacity to effectively mitigate COVID contagion in the jails without the need for federal court supervision by injunction.
D. STAYING THE INJUNCTION WILL PRESERVE THE STATUS QUO AND NOT HARM PLAINTIFFS
An order staying the injunction will preserve the status quo. The first known case of COVID in the Jail occurred around March 24, 2020. ECF 1-26, p. 2. The CDC Guidelines were issued a day prior, March 23, when Sheriff began implementing them. In March and April, when COVID first entered the Jail, like the community, the Jail was experiencing a lack of available testing. Testing for asymptomatic inmates was not readily available until the end of April. On May 5, 2020, when testing had significantly increased, there were 219 active COVID cases within the Jail4. ECF 65, p. 16. At the time of the Order, May 26, 2020, there were 67 current cases. Id. As of June 24, 2020, there are 4 active cases and all from new arrestees. Chiang Dec. ECF 90, ¶ 2. The daily rate has decreased from 219 at peak to 4 recently (and none due to transmission at the jail). This sharp trending decline in positive cases is due to the Sheriff’s early and effective
4 Appellants took the district court’s chart, calculated the number of current COVID cases for each day by taking the Positive Tests column and subtracting the Recovered column to get the current number of COVID cases for a given day.
13

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-1, Page 24 of 25
implementation of CDC Guidelines.5 In considering a balancing of the interests and harms, Plaintiffs will not be
harmed if the injunction is stayed. In truth, they would be in a less risky, healthier and safer environment (and one the inmates prefer, see footnote 4) without the Order, because the Order creates more face-to face contact and requires the Sheriff to compromise safety and security of inmates and staff in order to comply with the letter of the Order. Any argument by Plaintiffs that a stay of the injunction will accelerate the COVID contagion is contradicted by the current data, the law, and common sense. It is also belied by the Sheriff’s demonstrated effective management of this virus for the protection of the inmates in his care. The inmates are not currently at any measurable risk of exposure to COVID at the Jails at present that warrant a mandatory injunction and the Order should be immediately stayed. Staying the injunction will simply revert to the status quo, a status quo where inmates are cared for, appropriately distanced, tested, and protected, in a clean and hygienic environment. // // // // // // // // //
5 On the date of the hearing (May 19) there were 161 current cases, versus the date of the Order (May 26) there were 67 current cases.
14

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-1, Page 25 of 25

IV. CONCLUSION Defendants here respectfully ask this Court to stay the May 26, 2020 injunction to allow the Sheriff to continue to nimbly respond to this virus.
Respectfully submitted, LEON J. PAGE, COUNTY COUNSEL KAYLA N. WATSON, DEPUTY

DATED: July 1, 2020

By: __/S/______________________________ Kayla N. Watson, Deputy
Attorneys for Appellants-Defendants DON BARNES and ORANGE COUNTY, CALIFORNIA

CERTIFICATE OF SERVICE I certify that on July 1, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. Executed in Santa Ana, California this First day of July, 2020.
_______/S/_________________ Simon Perng

15

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ECF 86

Case 8:20C-cavs-0e0: 82305-5-J5G66B8-,S0H7K/01D/2o0c2u0m, eIDn:t 181673F9i9le6d3,0D6/k1t9E/n2t0ry:P2a-2g,eP1agoef 42 oPf a1g5e4 ID #:1959

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and COUNTY OF ORANGE (erroneously named
as ORANGE COUNTY, CALIFORNIA
10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

EASTERN DIVISION

14 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
15 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
16 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
17 themselves and all others similarly situated, et al.,
18
Plaintiffs/Petitioners,
19
v.
20
DON BARNES, in his official capacity as 21 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
22
Defendants/Respondents.
23

Case No. 8:20-cv-00835-JGB-SHK DEFENDANTS’ EX PARTE APPLICATION TO IMMEDIATELY DISSOLVE MAY 26, 2020 PRELIMINARY INJUNCTION; OR IN THE ALTERNATIVE, SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [Memorandum of Points and Authorities in Support Thereof, Declarations in Support & [Proposed] Order concurrently filed herewith]

24

TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:

25

Pursuant to Local Rule 7-19, the above-captioned Defendants, by and through

26 undersigned counsel, hereby apply ex parte to dissolve the Preliminary Injunction issued on

27 //

28 //

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 May 26, 2020 [ECF 651] (the “Order”) or in the alternative, grant Defendants an evidentiary

2 hearing on an expedited basis to further establish the facts supporting dissolving the Order.

3 It is further requested that this Court give scheduling priority to this Ex Parte Application

4 and the requests herein and in the supporting Memorandum of Points and Authorities filed

5 concurrently herewith as this issue will better determine the scope of the discovery

6 Plaintiffs are entitled to. Specifically, Defendants will and hereby do move the Court for:

7

(1) An Order dissolving the Order upon the showing of changed circumstances by

8

Defendants in these papers; or

9

(2) Alternatively, if the Court does not dissolve the PI Order outright, for an Order

10

granting Defendants an evidentiary hearing on an expedited basis to further

11

establish the facts supporting dissolving the Order.

12

Defendants make this request ex parte to protect Defendants’ rights and maintain the

13 status quo of conditions at the Orange County Jail (“Jail”), which have significantly

14 improved since this Court issued the Order. As of today, there are only 6 COVID positive

15 inmates in the Jail, and all are new arrestees. This is significant new evidence because it

16 demonstrates that there is currently zero intra-facility COVID-19 spread among the inmate

17 population and the current positive cases are a result of new arrestees becoming infected

18 through community transmission, and not from becoming infected in the Jail. As such,

19 Defendants request to immediately dissolve the Order on the grounds that the Order is not

20 factually or legally supported for it to remain.

21

As set forth in further detail in the Memorandum of Points and Authorities filed

22 concurrently herewith and the Declarations submitted in support thereof, Defendants submit

23 that good cause exists to grant the relief requested herein. The Court of Appeals “sua

24 sponte remand[ed] this case to [this Court] for the limited purpose of allowing the parties to

25 present any evidence of changed circumstances that might merit modification or dissolution

26 of the preliminary injunction.” Dkt. 16, 19. Accordingly, Defendants submit this ex parte

27

28
1 All references to ECF are to filings in the District Court case, while references to Dkt. are to filings in the Court of Appeals case.

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 application seeking immediate relief from this Court as Defendants have significant new

2 evidence to present to this Court that warrant dissolving the preliminary injunction.

3

In the alternative, Defendants respectfully request that this Court grant Defendants an

4 evidentiary hearing on an expedited basis to further establish the facts supporting dissolving

5 the Order.

6

Pursuant to Local Rule 7-19.1, on June 15, 2020, Defendants’ undersigned counsel

7 provided notice of its intent to file this ex parte application to Plaintiffs’ counsel by

8 electronic mail, and inquired as to Plaintiffs’ position. See Declaration of Kayla Watson.

9 On June 17, counsel for both parties met and conferred over the phone regarding inter alia,

10 the grounds for Defendants seeking ex parte relief, which Plaintiffs’ counsel disagreed with.

11 Id. Plaintiffs’ counsel’s name, address, and telephone number are as follows:

12

Stacey K. Grigsby

sgrigsby@cov.com

13

Covington & Burling LLP

One City Center, 850 Tenth Street, NW

14

Washington, DC 200001-4956

(202) 662-5238

15

16

Defendants’ application is based on this Notice of Ex Parte Application, the

17 accompanying Memorandum of Points and Authorities, the Declarations filed concurrently

18 herewith, the pleadings, transcripts, records and papers filed herein, and such other and

19 further oral and documentary evidence and legal memoranda as may be presented at or by

20 hearing on this application. A proposed order is lodged herewith.

21 DATED: June 19, 2020

Respectfully submitted,

22

LEON J. PAGE, COUNTY COUNSEL

KAYLA N. WATSON, DEPUTY

23

24

By:

/s/

Kayla N. Watson, Deputy

25

Attorneys for Defendants,

26

Don Barnes and County of Orange

27

28

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

CERTIFICATE OF SERVICE

2

I declare that I am a citizen of the United States employed in the County of Orange,

over 18 years old and that my business address is 333 W. Santa Ana Blvd., Ste. 407, Santa

3 Ana, California 92701; and my e-mail address is Marzette.lair@ coco.ocgov.com. I am not

a party to the within action.

4

BY CM/ECF: On June 19, 2020, I caused the document DEFENDANTS’ EX

5 PARTE APPLICATION TO DISSOLVE MAY 26, 2020 PRELIMINARY INJUNCTION;

OR IN THE ALTERNATIVE, SET EXPEDITED HEARING TO DISSOLVE

6 PRELIMINARY INJUNCTION to be served upon all counsel of record in this action who

are registered with the United States District Court’s CM/ECF system and listed below by

7 utilizing the United States District Court’s CM/ECF system:

8 MITCHELL KAMIN, ESQ mkamin@cov.com
9 AARON LEWIS, ESQ. alewis@cov.com
10 BRITTANY BENJAMIN, ESQ. bbenjamin@cov.com
11 COVINGTON & BURLING LLP 12 CASSANDRA STUBBS, ESQ.
cstubbs@aclu.org 13 AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
14
STACEY GRIGSBY, ESQ. 15 sgrigsby@cov.com
AMIA TRIGG, ESQ. 16 atrigg@cov.com
COVINGTON & BURLING LLP
17
OLIVIA ENSIGN, ESQ. 18 oensign@aclu.org
CRISTINA BECKER, ESQ. 19 cbecker@aclu.org
AMERICAN CIVIL LIBERTIES 20 UNION FOUNDATION
21 22

JOHN WASHINGTON, ESQ. jwashington@sshhlaw.com SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP PETER ELIASBERG, ESQ. peliasberg@aclu.org AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA PAUL HOFFMAN, ESQ. hoffpaul@aol.com UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC CARL TAKEI, ESQ. ctakei@aclu.org SOMIL TRIVEDI, ESQ. strivedi@aclu.org CLARA SPERA, ESQ. cspera@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION ZOE BRENNAN-KROHN, ESQ. zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION

23
I declare that I am employed in the office of a member of the Bar of this Court at 24 whose direction the service was made.

25

Executed in Santa Ana, California this 19th day of June, 2020

26

_______s/Marzette L. Lair_______

27

28

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee16ooff21454Page ID #:1963

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and ORANGE COUNTY, CALIFORNIA

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

EASTERN DIVISION

14 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
15 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
16 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
17 themselves and all others similarly situated, et al.,
18
Plaintiffs/Petitioners,
19
v.
20
DON BARNES, in his official capacity as 21 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
22
Defendants/Respondents.
23

Case No. 8:20-cv-00835-JGB-SHK DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION

24

25

26

27

28

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee27ooff21454Page ID #:1964

1

TABLE OF CONTENTS

Page No.

2

3 TABLE OF AUTHORITIES ............................................................................................... 3

4 I. INTRODUCTION ..................................................................................................... 4

5 II. FACTUAL AND PROCEDURAL BACKGROUND .............................................. 6

6 III. ARGUMENT............................................................................................................. 8

7

A. THE PRELIMINARY INJUNCTION IS NO LONGER

“NECESSARY” TO CORRECT A VIOLATION OF ANY

8

FEDERAL RIGHT.......................................................................................... 8

9

B. NEW FACTS AND SIGNIFICANT CHANGED

CIRCUMSTANCES WARRANT DISSOLVING THE

10

PRELIMINARY INJUNCTION................................................................... 10

11

C. NEW EVIDENCE WARRANTS THIS COURT DISSOLVING

THE INJUNCTION OR SETTING A HEARING TO DO SO.................... 11

12

1. The Information in Support of the Order is No Longer

13

Reflective of Current Circumstances in a Rapidly

Improving Environment...................................................................... 11

14

2. Plaintiffs No Longer Face Any Prospect of

15

Irreparable Harm ................................................................................. 14

16

3. Comity Counsels Restraint Here and Warrants Presently

Dissolving the Injunction .................................................................... 15

17

D. DISSOLVING THE INJUNCTION WILL PRESERVE THE

18

STATUS QUO AND NOT HARM PLAINTIFFS....................................... 16

19 IV. CONCLUSION........................................................................................................ 17

20

21

22

23

24

25

26

27

28

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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee38ooff21454Page ID #:1965

1

TABLE OF AUTHORITIES

2

Page No.

Cases

3

A&M Records, Inc. v. Napster, Inc.

4

284 F.3d 1091, 1098 (9th Cir. 2002) ....................................................................... 10

5 Farmer v. Brennan

511 U.S. 825, 834 (1994) ........................................................................................ 15

6

Flores v. Huppenthal

7

789 F.3d 994, 1001 (9th Cir. 2015) .......................................................................... 10

8 Gon v. First State Ins. Co.

871 F.2d 863, 866-67 (9th Cir. 1989)...................................................................... 10

9

Gordon v. County of Orange

10

888 F.3d 1118, 1124 (9th Cir. 2018) ........................................................................ 14

11 Levin v. Commerce Energy, Inc.

560 U.S. 413, 421 (2010) ........................................................................................ 15

12

South Bay Pentecostal Church v. Newsom

13

No. 19A1044, 2020 WL 2813056 (U.S. May 29, 2020) ......................................... 15

14 State v. Trump

871 F.3d 646, 654 (9th Cir. 2017) ........................................................................... 10

15

Swain

16

2020 WL 3167628, at *5 ......................................................................................... 15

17 U.S. ex rel. F.T.C. v. Bus. Recovery Servs. LLC 488 F. App’x 188, 189-90 (9th Cir. 2012) .............................................................. 10
18
Statutes 19
18 U.S.C. § 3626(a)(1)......................................................................................................... 9
20
18 U.S.C. § 3626(a)(1)(B) ................................................................................................... 9
21
18 U.S.C. § 3626(d)(4)....................................................................................................9-10
22
18 U.S.C. § 3626(g)(7)......................................................................................................... 8
23

24

25

26

27

28

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee49ooff21454Page ID #:1966

1 I. INTRODUCTION

2

Defendants earnestly and respectfully implore this Court to lift its May 26, 2020

3 Preliminary Injunction Order due to significant changed circumstances and new facts.

4 There are presently only 6 COVID cases in the entire Orange County Jail (the “Jail”) (all

5 institutions) and all those cases are from new arrestees, (who have immediately been placed

6 into quarantine) not from becoming infected in the Jail. See Declaration of Dr. Chiang ¶ 5-

7 6. New arrestees who test positive at booking are quarantined for a minimum of 14 days

8 pursuant to CDC recommendations and are tested prior to joining the general population.

9 As a result of these prompt and critical protocols implemented well before the Court’s May

10 26th Order, the existing inmate population is at very low risk of contracting COVID.

11 Because of this minimal risk, six feet social distancing at all times among inmates is not

12 necessary, especially, for example, between cellmates, both of whom are COVID-free and

13 interact only with each other—akin to a family unit or roommate—and especially when all

14 inmates have been provided facial coverings/masks and can exchange the face mask on a

15 daily basis. Further, inmates have ample toilet paper, cleaning supplies, and hand sanitizer

16 at their constant disposal. See photographs attached to Declarations of Captain Rich,

17 Captain Von Nordheim, and Captain Ramirez filed concurrently herewith. In addition, Jail

18 staff deputies use electromagnetic spray sanitizer to disinfect high touch surfaces twice

19 daily. See Rich Decl., Exh. F. The Orange County Sheriff’s Department’s (the “Sheriff”)

20 efforts in combatting COVID in the Jail is nothing short of astounding. There may be

21 institutions under this Court’s jurisdiction that have been lax in responding to this

22 pandemic. The Orange County Sheriff’s Department is not one of them. It is a model in

23 successful management and mitigation of a deadly contagion in difficult circumstances for

24 the benefit of all inmates, staff and the public. The Sheriff’s efforts should be commended.

25 Were the facts regarding hygiene, distancing, personal protective equipment and cleaning

26 anything other than those presented by Defendants to this Court, the results here would not

27 //

28 //

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 be as dramatically positive for the inmates.1 Plaintiffs have no competing evidence that

2 COVID continues in the jails (other than as described regarding new arrestees).

3

We are respectfully and earnestly pleading to this Court to examine the stark

4 evidence of: (1) a dramatic decline in COVID at the Jail (before, during, and after this

5 Court’s May 26 Order); ( 2) the fact that there are only 6 remaining cases in the entire Jail;

6 (3) that those remaining cases are from new arrestees from the community and not from

7 transmission in the Jail; and finally, (4) that the Sheriff’s robust mitigation measures and

8 verifiable outcomes no longer require this Court’s Preliminary Injunction (“Order”).

9

We are respectfully requesting that this Court either: (a) dissolve the Preliminary

10 Injunction upon the showing of changed circumstances by Defendants in these papers, or

11 alternatively, (b) grant Defendants an evidentiary hearing on an expedited basis to further

12 establish the facts supporting dissolving the Preliminary Injunction.

13

This matter requires examination of current, diminishing numbers for an accurate

14 legal determination. While COVID cases were already in sharp decline at the Jail on May

15 26, 2020, the current numbers showing complete eradication of COVID transmission

16 among the inmates at the Jail—a fact that did not exist at the time of this Court’s Order, and

17 consequently, could not have been considered by the District Court. Given this new

18 evidence of current COVID cases in the Jail, the Order is not factually or legally supported

19 for it to remain. Moreover, many of Plaintiffs factual assertions in the Declarations that

20 supported the Order are no longer relevant or were never accurate. See Declaration of

21

22

23

1 Plaintiffs appear to refuse to believe the COVID numbers provided, as if the Sheriff were somewhere hiding additional COVID positive inmates. Plaintiffs seek unreasonable,

24

unnecessary and promiscuous jail inspections, depositions, and vast and overly burdensome discovery in order (already served) for Defendants to extricate themselves here. It is

25

unclear what else the Sheriff could do beyond reduce jail transmission to ZERO and properly quarantine, test and protect new arrestees who are positive or symptomatic.

26

Tellingly, Plaintiffs have not proposed anything other than sweeping discovery and invasive inspections and examinations that Defendants could do to satisfy them. The

27

injunction has been weaponized by Plaintiffs here, and it is solely punitive to Defendants at this point. It is dubious that even complete inmate population inoculation with a 100%

28

effective vaccine (if one existed) would result in any movement of Plaintiffs’ position in this matter. We respectfully seek the Court’s assistance.

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 Sergeant Hennessey and Declaration of Erin Winger filed concurrently herewith. As such,

2 taking all of this current information into consideration, the Order should be dissolved as

3 there are no current facts to support it. Defendants’ new evidence is directly relevant to the

4 balancing of the harms and thoroughly demonstrates why dissolving the Order, or in the

5 alternative, why shortening time to hear the Defendants’ Motion to Dissolve the Order, is

6 necessary.

7 II. FACTUAL AND PROCEDURAL BACKGROUND

8

On April 30, 2020, ten inmates at the Orange County Jails (“OCJ”) filed a class

9 action habeas corpus case seeking emergency injunctive relief against Defendants. ECF 12.

10 Plaintiffs claim that the Sheriff has failed to implement the Center for Disease Control

11 Guidelines (“CDC Guidelines”) for custodial facilities and, as a result, Plaintiffs’ conditions

12 of incarceration have put them all at imminent risk of serious illness or death from COVID-

13 19. Id.

14

On May 11, 2020, Plaintiffs filed an ex parte application and motion for temporary

15 restraining order and preliminary injunction seeking (1) mandated compliance with CDC

16 Guidelines for COVID-19 in the OCJ, and (2) the immediate release of all “medically

17 vulnerable” jail inmates. ECF 41-1. This Court set the matter for telephonic hearing on

18 May 19, 2020. ECF 51, 55. On May 26, 2020, the Court issued its 21-page ruling, granting

19 the Plaintiffs class-wide injunctive relief and making findings. ECF 65. Because

20 circumstances have dramatically changed since the Court issued its Order, these are the

21 subject of this Motion to Dissolve.

22

On May 27, 2020, Defendants filed an ex parte application to stay all proceedings

23 pending appeal. ECF 66. The Court denied Defendants’ Stay Application on June 2, 2020.

24 ECF 72. Defendants then filed an Appeal in the United States Court of Appeals for the

25 Ninth Circuit (“COA”) and moved for both an Emergency Stay and Stay Pending Appeal.

26

27

28

2 All references to ECF are to filings in the District Court case, while references to Dkt. are to filings in the Court of Appeals case.

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1 ECF 68; Dkt. 1, 8. On June 4, 2020, the COA declined an Emergency Stay. Dkt. 10. On

2 June 8, 2020, Plaintiffs filed a response opposing Defendants’ request for stay. Dkt. 13.

3 On June 10, Defendants filed a Reply in support of Stay Pending Appeal (Dkt. 14) and an

4 Emergency Motion to Supplement the Record on Appeal. Dkt. 15. On June 12, the COA

5 denied Defendants stay application, however sua sponte remanded the case to this Court for

6 the “limited purpose of allowing the parties to present any evidence of changed

7 circumstances that might merit modification or dissolution of the preliminary injunction.”

8 Dkt. 16, Dkt. 19-1.

9

Meanwhile, in this Court, on June 4th Defendants filed a motion to dismiss Plaintiffs’

10 Complaint under FRCP Rule 12(b)(6). ECF 73. On June 12, Plaintiffs filed a First

11 Amended Complaint. ECF 79. On June 15, Plaintiffs oddly filed an opposition to

12 Defendants’ motion to dismiss, even though their First Amended Complaint mooted the

13 motion to dismiss. On June 16, prior to meeting and conferring with Defendants, Plaintiffs

14 served Defendants with Plaintiffs' First Set of Interrogatories, Requests for Production of

15 Documents, Notice of Inspection, and Deposition Notices for Commander Balicki, Dr.

16 Chiang, and Ms. Winger. Thereafter, on June 18, Plaintiffs filed a Motion for Expedited

17 Discovery alleging it is “limited in scope” when in fact the requests are premature, invasive,

18 harassing and contrary to the spirit and letter of FRCP Rule 26. Nevertheless, this Court

19 should give priority to this Motion to dissolve the preliminary injunction as suggested by

20 the Court of Appeals. Dkt. 19.

21

Also, during this time, on June 4th, almost identical Plaintiffs filed a Petition for Writ

22 of Mandate in Orange County Superior Court, Case No. 30-2020-01141117-CU-WM-CXC,

23 seeking class-wide release of all medically vulnerable and disabled inmates in the Jail. See

24 Register of Actions attached as Exhibit A. On June 5th, Plaintiffs moved ex parte in the

25 Superior Court for a temporary restraining order and preliminary injunction for class-wide

26 release. Defendants opposed Plaintiffs’ ex parte application and to date, the ex parte

27 hearing has not been scheduled by the Superior Court. Id.

28 //

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

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1

As of the filing of this Motion, there are only 6 COVID positive inmates and for the

2 last two weeks, all new COVID cases have come from new arrestees being booked into the

3 Jail. See Declaration of Dr. Chiang at ¶¶ 5-6. This is a significant decrease in COVID

4 positive cases. On May 19th, the date of the hearing there were 161 COVID positives (ECF

5 65, p. 16). On May 26th, the date the Order was issued there were 67 COVID positive

6 inmates. Id. Today, there are 6 COVID positive inmates and all are new arrestees. See

7 Chaing Decl. ¶¶5-7. This further demonstrates that Defendants did not fall “significantly

8 short of complying with the CDC Guidelines” (Dkt. 19-1, fn 8) prior to May 26, as it would

9 be impossible for a correctional facility the size of the Orange County Jail, with multiple

10 congregate living quarters, to make this type of significant progress as Defendants have

11 done here.

12 III. ARGUMENT

13

A. THE PRELIMINARY INJUNCTION IS NO LONGER “NECESSARY”

14

TO CORRECT A VIOLATION OF ANY FEDERAL RIGHT

15

The Prison Litigation Reform Act (“PLRA”) specifically limits prospective relief to

16 that which is “necessary.” It also provides that such relief must be “narrowly drawn” and

17 be “the least intrusive means necessary” to correct a violation of a federal right. The PLRA

18 defines prospective relief to mean “all relief other than compensatory monetary damages.”

19 18 U.S.C. sec. 3626(g)(7). Specifically, the PLRA provides:

20

Prospective relief in any civil action with respect to prison

21

conditions shall extend no further than necessary to correct the

22

violation of the Federal right of a particular plaintiff or plaintiffs.

23

The court shall not grant or approve any prospective relief unless

24

the court finds that such relief is narrowly drawn, extends no

25

further than necessary to correct the violation of the Federal

26

right, and is the least intrusive means necessary to correct the

27

violation of the Federal right. The court shall give substantial

28

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1

weight to any adverse impact on public safety or the operation of

2

a criminal justice system caused by the relief.

3 18 U.S.C. sec. 3626(a)(1).

4

In undertaking this analysis, a federal court must not only consider the “adverse

5 impact on public safety or the operation of a criminal justice system caused by the relief,” it

6 must give it “substantial weight” in the analysis.

7

(B) . . . The court shall give substantial weight to any adverse

8

impact on public safety or the operation of a criminal justice

9

system caused by the preliminary relief and shall respect the

10

principles of comity set out in paragraph (1)(B) in tailoring any

11

preliminary relief. Preliminary injunctive relief shall

12

automatically expire on the date that is 90 days after its entry,

13

unless the court makes the findings required under subsection

14

(a)(1) for the entry of prospective relief and makes the order final

15

before the expiration of the 90-day period.

16 18 U.S.C. sec. 3626(a)(1)(B).

17

With respect to termination of prospective relief, the PLRA provides:

18

(4) Termination or modification of relief.—

19

Nothing in this section shall prevent any party or intervener from

20

seeking modification or termination before the relief is

21

terminable under paragraph (1) or (2), to the extent that

22

modification or termination would otherwise be legally

23

permissible.

24

(e) Procedure for Motions Affecting Prospective Relief.—

25

(1) Generally.—

26

The court shall promptly rule on any motion to modify or

27

terminate prospective relief in a civil action with respect to prison

28

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1

conditions. Mandamus shall lie to remedy any failure to issue a

2

prompt ruling on such a motion.

3 18 U.S.C. sec 3626(d)(4). Defendants move pursuant to 18 U.S.C. section 3626(d)(4) to

4 terminate the prospective relief issued in this case on May 26, 2020.

5

B. NEW FACTS AND SIGNIFICANT CHANGED CIRCUMSTANCES

6

WARRANT DISSOLVING THE PRELIMINARY INJUNCTION

7

In addition to the PLRA provisions cited above, the Court has inherent authority to

8 dissolve or modify the injunction here. “A district court has inherent authority to modify a

9 preliminary injunction in consideration of new facts.” A&M Records, Inc. v. Napster, Inc.,

10 284 F.3d 1091, 1098 (9th Cir. 2002). “A party seeking modification of an injunction bears

11 the burden of establishing that a significant change in facts or law warrants revision of the

12 injunction.” State v. Trump, 871 F.3d 646, 654 (9th Cir. 2017) (quotation marks and ellipses

13 omitted). Typically, a motion to modify or dissolve a preliminary injunction is limited to

14 new facts or law, and consequently, “[a] motion to modify or dissolve an injunction cannot

15 be used to challenge the imposition of the original injunction.” U.S. ex rel. F.T.C. v. Bus.

16 Recovery Servs. LLC, 488 F. App’x 188, 189-90 (9th Cir. 2012). “On the other hand, a

17 modification may be so fundamental to the original injunction, or may otherwise present

18 issues so inextricable from the validity of the original injunction, that review must include

19 the whole package.” Gon v. First State Ins. Co., 871 F.2d 863, 866-67 (9th Cir. 1989). “A

20 court abuses its discretion when it refuses to modify an injunction or consent decree in light

21 of a significant change either in factual conditions or in law that renders continued

22 enforcement detrimental to the public interest.” Flores v. Huppenthal, 789 F.3d 994, 1001

23 (9th Cir. 2015) (quotation marks omitted).

24

When the preliminary injunction is with respect to jail conditions, the Prison

25 Litigation Reform Act (“PLRA”) specifically limits prospective relief to that which is

26 “necessary.” It provides:

27

Prospective relief in any civil action with respect to prison

28

conditions shall extend no further than necessary to correct the

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1

violation of the Federal right of a particular plaintiff or plaintiffs.

2

The court shall not grant or approve any prospective relief unless

3

the court finds that such relief is narrowly drawn, extends no

4

further than necessary to correct the violation of the Federal

5

right, and is the least intrusive means necessary to correct the

6

violation of the Federal right. The court shall give substantial

7

weight to any adverse impact on public safety or the operation of

8

a criminal justice system caused by the relief.

9

Moreover, the PLRA provides that the court shall promptly rule on any motion to

10 modify or terminate prospective relief in a civil action with respect to prison conditions.

11 Mandamus shall lie to remedy any failure to issue a prompt ruling on such a motion.

12 Pursuant to these provisions, Defendants here are moving to dissolve the preliminary

13 injunction immediately on the facts shown in this application, or alternatively, to facilitate a

14 prompt ruling on the matter, Defendants alternatively request an expedited evidentiary

15 hearing to further establish the facts supporting dissolving the Preliminary Injunction.

16

C. NEW EVIDENCE WARRANTS THIS COURT DISSOLVING THE

17

INJUNCTION OR SETTING A HEARING TO DO SO

18

1. The Information in Support of the Order is No Longer Reflective of

19

Current Circumstances in a Rapidly Improving Environment

20

“Lies, damned lies, and statistics” is a quote often attributed to Mark Twain. It stands

21 for the foibles sometimes at play in statistical analysis. In this case, it appears there may

22 have been some misunderstanding underlying the Sheriff’s COVID numbers. Defendants

23 seek to rectify this discrepancy in order to shed light on the current evidence.

24

At the time of this Court’s May 26, Order, the following was asserted and found true

25 by the Court: “soaring number of confirmed cases”(ECF 65 at 15); “hundreds of infected

26 individuals” (Id. at 17); “rates of COVID-19 infections at the Jail are skyrocketing” (Id.);

27 “more must be done when there are nearly four hundred confirmed cases in a facility.”

28 (ECF 72, p.2.) These findings are accurate in one regard and Defendants are not seeking to

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 re-litigate that issue presently. However, it is crucial to point out a statistical anomaly so

2 that the Court may have a sound grasp of the current situation at the jails. The number

3 regarding “hundreds,” was at all times a cumulative number, meaning the number of all

4 known cases that had passed through the jails—at any time—during the pandemic. That

5 number will always go up; it can never go down. New arrestees—who are the source of all

6 current COVID cases at the Jails—are increasing the Sheriff’s cumulative COVID

7 numbers. However, when viewed only in this context, it leads to confusion.3

8

At no point were there ever more that 219 COVID cases in the Jail (on any one day)

9 (the “daily rate”). That date was May 5, 2020. Now, with a clear view of the number as the

10 daily rate existing at the Jail, we can get a better understanding of what is going on, and

11 why the Sheriff’s response to COVID has been so remarkable. By May 26, 2020, that

12 relevant number—the daily rate, had already dove to 67. Today that number is only 6. The

13 chart attached to the Declaration of Dr. Chiang at Exhibit A, shows the dramatic decreases

14 in daily COVID cases at the Orange County Jails and the shift from intra-facility spread to

15 new arrestees being the cause of the positive causes via community spread.

16

Because confusion can ensue by mingling the cumulative number and the daily rate,

17 it bears repeating that even while the Sheriff eradicates COVID transmission from the Jails,

18 the new arrestees that are positive or symptomatic are still increasing the cumulative

19 numbers at the Jails. No matter what happens, Plaintiffs can always allege that there are

20 “hundreds” of COVID cases at the jails, that the number is “soaring,” when looked at in one

21 specific manner—cumulatively.

22

Defendants submit that the dramatic decrease in the daily rate at the jails—

23 continuing from the onset of COVID, through this Court’s Order and continuing to

24 present—is a significant change in circumstances and new evidence supporting dissolving

25 the injunction. Continuation of the injunction now is against the public interest because

26

27

3 In retrospect, Defendants, and this Court, would have been well-served by

28

Defendants having provided additional statistical information at the front end of this matter, and seek to rectify that now.

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1 local officials, like the Sheriff, need the flexibility on the ground to adapt to the rapidly

2 changing public health emergency without the external limitations of a federal court

3 injunction. And the Sheriff has demonstrated here the success that can have.

4

In addition to COVID almost being eliminated from the current Jail population,

5 additional facts have arisen - new positive cases are coming only from new bookings. Any

6 remaining COVID cases at the jails are due to community spread before arriving at the jail,

7 and not from being infected in the Jail. See Chiang Decl. ¶¶ 5-7. The Sheriff, of course,

8 has no control over the health status of anyone arrested by the Sheriff’s department or the

9 numerous other arresting agencies that utilize the Jail. This significant change of

10 circumstances can, we hope, show this Court that the Sheriff is not deliberately indifferent

11 to the inmates in his charge, but rather, has provided extraordinary care, management and

12 mitigation of this pandemic.

13

In addition, the Sheriff has submitted numerous photographs and declarations

14 demonstrating, inter alia:

15

(1) The free commissary packages provided to all inmates beginning April 9 due

16

to the COVID pandemic (See Cpt. Von Nordheim Decl. ¶ 4(i), Exh. I);

17

(2) The amount of toilet paper, soap, and disinfectant available to inmates (See

18

Cpt. Rich Decl. ¶ 4(c)-(g), Exh. C – G; See Cpt. Ramirez Decl. ¶ 4(c)-(g), Exh.

19

C – G;);

20

(3) The social distancing measures put in place to implement as much social

21

distancing as practicable (See Cpt. Rich Decl. ¶ 4 (a)-(b), Exh. A-B);

22

(4) The limited number of people in dayrooms and facial coverings provided to

23

allow for safe social distancing measures (See Sgt. Hennessey Decl. ¶¶ 4(b)(ii),

24

(d)(ii), (g)(iii), (n)(ii), (n)(viii).

25

This entire matter turns on current conditions at the Jail to determine if prospective

26 relief is “necessary” to remedy the violation of a federal right, and current conditions

27 demonstrate that the Sheriff has successfully mitigated COVID under implemented

28 protocols, without the need for court intervention. The Sheriff respectfully requests that this

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1 Court consider the exceptional performance his Department has displayed in aggressively

2 combatting COVID in the Jails. Accordingly, the Court should immediately dissolve the

3 preliminary injunction because current facts and circumstances no longer support the basis

4 for the Order, or alternatively, allow Defendants the opportunity to present additional

5 evidence in a time-shortened hearing.

6

2. Plaintiffs No Longer Face Any Prospect of Irreparable Harm

7

As noted above, the “369 cases of COVID-19 in the Jail,” was a cumulative number

8 representing every case ever had at the Jails since COVID emerged. The Court found that

9 “without additional measures to abate the spread, more inmates will contract the disease.”

10 ECF 65, p. 18. Those findings have been dramatically impacted by the significant change

11 in circumstances and facts since the Court issued its Order.

12

The daily rate has continued to plunge significantly. Prior to and following this

13 Court’s order, the daily rate continued to plummet at the Jails (even while cumulative

14 numbers would continue to rise) because the Sheriff aggressively and early-on,

15 implemented the CDC Interim Guidelines. Because there is ZERO transmission of the

16 virus currently spreading in the Jails, Plaintiffs no longer face any prospect of irreparable

17 harm because—at least while at the Jail in the Sheriff’s care—they are isolated from

18 community transmission of the virus that we all face in the general public. While it is true

19 that two named medically vulnerable Plaintiffs contracted the virus (over a month ago),

20 they have now successfully recovered without any need for hospitalization. See Decl. of

21 Erin Winger ¶¶ 7(e)(iv), (h)(iv). Moreover, Plaintiffs submitted declarations from at least

22 30 different inmates in the Jail. Only 5, including the 2 previously mentioned medically

23 vulnerable Plaintiffs, (out of the 30) inmates who provided declarations, tested positive for

24 COVID. All of those 5 inmates tested positive over a month ago, and all have successfully

25 recovered without hospitalization. Id. ¶¶ 7 (k), (l), (q). There is no remaining element of

26 irreparable harm as to Plaintiffs, individually or as a class, to support the Order.

27

Just by way of one example, whether “objective deliberate indifference” is analyzed

28 under the Fourteenth Amendment’s standard outlined in Gordon v. County of Orange, 888

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

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1 F.3d 1118, 1124 (9th Cir. 2018) (pretrial detainees) or the Eighth Amendment’s “objectively

2 sufficiently serious” deprivation prong (sentenced inmates), which requires a Plaintiff to

3 demonstrate they are being “incarcerated under conditions posing a substantial risk of

4 serious harm,” Farmer v. Brennan, 511 U.S. 825, 834 (1994), where Defendants have

5 eliminated the transmission of COVID in the jails, and where COVID cases are represented

6 solely by new arrestees, Defendants submit that under the current circumstances, Plaintiffs

7 no longer meet either standard with respect to the risk of COVID-19 infection the inmates

8 have ceased to face. See Swain, 2020 WL 3167628, at *5.

9

3. Comity Counsels Restraint Here and Warrants Presently Dissolving the

10

Injunction

11

The comity doctrine counsels lower federal courts to resist engagement in certain

12 cases despite falling within their jurisdiction. The doctrine reflects:

13

[A] proper respect for state functions, a recognition of the fact

14

that the entire country is made up of a Union of separate state

15

governments, and a continuance of the belief that the National

16

Government will fare best if the States and their institutions are

17

left free to perform their separate functions in separate ways. Fair

18

Assessment, 454 U.S., at 112, 102 S.Ct. 177 (quoting Younger v.

19

Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)).

20 Levin v. Commerce Energy, Inc., 560 U.S. 413, 421 (2010) [int. quotations omitted].

21

Federal courts should resist administration of local jails without significant

22 constitutional cause. South Bay Pentecostal Church v. Newsom, No. 19A1044, 2020 WL

23 2813056 (U.S. May 29, 2020.) The prospect of contempt presented when a local law

24 enforcement agency is unable to take certain actions in the face of a federal injunction,

25 dramatically limits the Sheriff’s options for successfully managing the crisis. It puts the

26 Sheriff more toward managing legal exposure than maintaining laser focus on safety. For

27 instance, a requirement that the Sheriff maintain all inmates 6 feet or more apart, access to

28 daily showers and laundry, daily temperature checks and COVID assessments of every

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 inmate4, daily recreation, phone and video conferencing for quarantined inmates, while

2 having to also sanitize between each use and ensure incompatible classifications of inmates

3 do not mix, is a near impossible task. See Declaration of Sergeant Hennessey at ¶¶ 5-8,

4 Exhibit A. But it is also an unnecessary one. Simply permitting two inmates who are both

5 COVID-free to share a cell and recreate/dayroom with that other inmate is not a factor for

6 contagion of COVID, and is no different than roommates who do not social distance 6 feet

7 from each other at all times in their shared COVID-free living situation. It allows the

8 Sheriff to effectively utilize the available physical space and to provide adequate and

9 necessary quarantine to the inmates that do need it, such as new arrestees and anyone who

10 might subsequently display symptoms or test positive. The Sheriff has demonstrated the

11 capacity to effectively mitigate COVID contagion in the jails without the need for federal

12 court supervision by injunction.

13

D. DISSOLVING THE INJUNCTION WILL PRESERVE THE STATUS

14

QUO AND NOT HARM PLAINTIFFS

15

An order dissolving the injunction will preserve the status quo. The first known case

16 of COVID in the Jail occurred around March 24, 2020. ECF 1-26, p. 2. The CDC

17 Guidelines were issued a day prior, March 23, when Sheriff began implementing them. In

18 March and April, when COVID first entered the Jail, like the community, the Jail was

19 experiencing a lack of available testing. Testing for asymptomatic inmates was not readily

20 available until the end of April. On May 5, when testing had significantly increased, there

21 were 219 active COVID cases within the Jail5. ECF 65, p. 16. At the time of the Order

22

23

24

4 Not to mention, several medically vulnerable Plaintiffs share in Defendants’ concerns of increased face-to-face contact among inmates and staff. See ECF’s 41-19 ¶ 13,

25

41-30 ¶ 10, 41-27, ¶ 8. Defendants have raised these concerns as well as several provisions of the Court’s Order create more face-to-face interaction thereby increasing the risk of

26

COVID transmission from staff (who leave the Jail everyday) to inmates (who are isolated in the Jail).

27

5 Appellants took the district court’s chart, calculated the number of current COVID

28

cases for each day by taking the Positive Tests column and subtracting the Recovered column to get the current number of COVID cases for a given day.

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 (May 26), there were 67 current cases. Id. As of today’s date, there are 6 active cases and

2 all from new arrestees. Chiang Dec. ¶ 5-6. The daily rate has decreased from 219 at peak

3 to 6 today (and none due to transmission at the jail). This sharp trending decline in positive

4 cases is due to the Sheriff’s early and effective implementation of CDC Guidelines.6

5

In considering a balancing of the interests and harms, Plaintiffs will not be harmed in

6 the absence of the injunction. In truth, they would be in a less risky, healthier and safer

7 environment (and one the inmates prefer, see footnote 4) without the Order, because the

8 Order creates more face-to face contact and requires the Sheriff to compromise safety and

9 security of inmates and staff in order to comply with the letter of the Order. Any argument

10 by Plaintiffs that a dissolution of the injunction will accelerate the COVID contagion is

11 contradicted by the current data, the law, and common sense. It is also belied by the

12 Sheriff’s demonstrated effective management of this virus for the protection of the inmates

13 in his care. The inmates are not currently at any measurable risk of exposure to COVID at

14 the Jails at present that warrant a mandatory injunction and the Order should be dissolved.7

15

Dissolving the injunction will simply revert to the status quo, a status quo where

16 inmates are cared for, appropriately distanced, tested, and protected, in a clean and hygienic

17 environment.

18 IV. CONCLUSION

19

Defendants, Plaintiffs and this Court all want what is best for the inmates at the

20 Orange County Jails—to be free of unnecessary risk of exposure to COVID. The Sheriff

21 has met his obligation to provide a safe environment for the inmates in his care. The May

22 26, 2020 injunction was issued at a time of rapidly declining COVID numbers. The Court

23

24

6 On the date of the hearing (May 19) there were 161 current cases, versus the date of

25 the Order (May 26) there were 67 current cases.

26

7 Plaintiffs will predictably again assert in response to this motion that two of their Plaintiffs contracted COVID. Yet, relying on that fact alone, when both individuals have

27

fully recovered without the need for hospitalization creates a no-win situation for the Sheriff here. Even if there is currently no exposure risk to inmates in the jail, Plaintiffs reliance on

28

the fact that there was at one time is not something the Sheriff can undo, but it is also not the current state of the facts.

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

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1 understandably, when presented with cumulative numbers that continued to rise without the

2 necessary context, was concerned. The Court could not foresee in May that the Sheriff

3 would completely eliminate COVID transmission at the Jail by the end of June.

4

Defendants here respectfully and earnestly ask this Court to dissolve the May 26,

5 2020 injunction to allow the Sheriff to continue to nimbly respond to this virus or, in the

6 alternative, that Defendants be granted a hearing on a time-shortened basis to provide the

7 Court further evidence of the same.

8 DATED: June 19, 2020

Respectfully submitted,

9

LEON J. PAGE, COUNTY COUNSEL

KAYLA N. WATSON, DEPUTY

10

11

By:

/s/

12

Kayla N. Watson, Deputy

13

Attorneys for Defendants,

Don Barnes and County of Orange

14

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Case SumCmaasrey8::2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1294ooff21454Page ID
#:1981 Case Id: 30-2020-01141117-CU-WM-CXC

Case

CYNTHIA CAMPBELL VS.DON BARNES,IN HIS OFFICIAL CAPACITY AS

Title: SHERIFF OF ORANGE COUNTY,CALIFORNIA

Case
Type:

WRIT OF MANDATE

Filing
Date:

06/02/2020

Category: CIVIL - UNLIMITED

Register Of Actions

RCA

Docket

Filing Filing
Document Select
Date Party

E-FILING TRANSACTION 2914554 RECEIVED

1

06/04/2020

NV

ON 06/02/2020 02:16:02 PM.

PETITION FOR WRIT OF MANDATE FILED BY

CAMPBELL,CYNTHIA;CASTILLO,MONIQUE;

2

GONZALEZ,SANDY;ORTIZ,CECIBEL 06/02/2020

CARIDAD;TRACE,MARK;WAGNER,DON ON

06/02/2020

52 pages i

CIVIL CASE COVER SHEET FILED BY

CAMPBELL,CYNTHIA;CASTILLO,MONIQUE;

3

GONZALEZ,SANDY;ORTIZ,CECIBEL 06/02/2020

CARIDAD;TRACE,MARK;WAGNER,DON ON

06/02/2020

3 pages --

SUMMONS ISSUED AND FILED FILED BY

CAMPBELL,CYNTHIA;CASTILLO,MONIQUE;

4

GONZALEZ,SANDY;ORTIZ,CECIBEL 06/02/2020

CARIDAD;TRACE,MARK;WAGNER,DON ON

06/02/2020

1 pages

PAYMENT RECEIVED BY LEGALCONNECT

FOR 194 - COMPLAINT OR OTHER 1ST PAPER,

34 - COMPLEX CASE FEE - PLAINTIFF IN THE

5

AMOUNT OF 1,435.00, TRANSACTION

06/04/2020

NUMBER 12735322 AND RECEIPT NUMBER

12561601.

1 pages

CASE ASSIGNED TO JUDICIAL OFFICER

6

06/02/2020

WILSON,PETER ON 06/02/2020.

7 PROPOSED ORDER RECEIVED ON 06/05/2020 06/05/2020

1 pages L i 3 pages ^ '

E-FILING TRANSACTION 41089974 RECEIVED

8

06/05/2020

NV

ON 06/05/2020 01:32:38 PM.

EXHIBIT A Page 19

ROA

Case 8:2C0a-scev:-02008-53556-J6G8DB,o0-cS7kH/0eK1t/2D02o0c,uImDe: n1#t1:871639-981926F3,ileDdkt0E6n/1tr9yF/:2i20l-2i,nPPgaaggeeF22i0l5oiofnfg214D54oPcaugmeeIDnt Select Date Party

EX PARTE APPLICATION - OTHER
9 (RESTRAINING ORDER)FILED BY ORTIZ, 06/05/2020
CECIBEL CARIDAD ON 06/05/2020

5 pages 1 !

DECLARATION - OTHER(OF CASSANDRA

10

STUBBS)FILED BY ORTIZ,CECIBEL

06/05/2020

CARIDAD ON 06/05/2020

5 pages

MEMORANDUM OF POINTS AND

11 AUTHORITIES FILED BY ORTIZ,CECIBEL 06/05/2020

CARIDAD ON 06/05/2020

REQUEST FOR JUDICIAL NOTICE FILED BY

12

06/05/2020

ORTIZ,CECIBEL CARIDAD ON 06/05/2020

39 pages
'
8 pages 1 1

DECLARATION FOR TEMPORARY

13 RESTRAINING ORDER FILED BY ORTIZ, 06/05/2020

NV

CECIBEL CARIDAD ON 06/05/2020

APPENDIX OF AUTHORITIES FILED BY

14

06/05/2020

ORTIZ,CECIBEL CARIDAD ON 06/05/2020

224 pages

PAYMENT RECEIVED BY LEGALCONNECT

FOR 36 - MOTION OR OTHER(NOT 1ST)

15

PAPER REQUIRING A HEARING IN THE 06/05/2020

AMOUNT OF 60.00,TRANSACTION NUMBER

12736022 AND RECEIPT NUMBER 12562301.

1 pages

MOTION FOR TEMPORARY RESTRAINING

ORDER SCHEDULED FOR 06/08/2020 AT

16

06/05/2020

NV

01:30:00 PM IN CX102 AT CIVIL COMPLEX

CENTER.

CASE REASSIGNED TO WALTER SCHWARM

17

06/05/2020

NV

EFFECTIVE 06/05/2020.

THIS CASE IS REASSIGNED TO THE

18 HONORABLE WALTER SCHWARM FOR ALL 06/05/2020

NV

PURPOSES.

MINUTES FINALIZED FOR CHAMBERS WORK

19

06/05/2020

06/05/2020 01:55:00 PM.

1 pages

20

CLERK'S CERTIFICATE OF

06/05/2020

2 pages

MAILING/ELECTRONIC SERVICE

MOTION FOR TEMPORARY RESTRAINING

ORDER REASSIGNED TO C19 AT CENTRAL

21

06/05/2020

NV

JUSTICE CENTER ON 06/08/2020 AT 01:30:00

PM.

EXHIBIT A Page 20

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:F2i20l-2i,nPPgaaggeeF22i16loiofnf2g1454Page ID

ROA

Docket

#:1983

Document Select
Date Party

MOTION FOR TEMPORARY RESTRAINING

ORDER SCHEDULED FOR 06/08/2020 AT

22

06/05/2020

NV

01:30:00 PM IN C19 AT CENTRAL JUSTICE

CENTER.

E-FILING TRANSACTION 3912153 RECEIVED

23

06/08/2020

NV

ON 06/08/2020 09:06:37 AM.

DECLARATION IN SUPPORT FILED BY ORTIZ,

24

06/08/2020

CECIBEL CARIDAD ON 06/08/2020

1 pages - -

PROOF OF SERVICE BY MAIL FILED BY

25

06/08/2020
ORTIZ,CECIBEL CAJUDAD ON 06/08/2020

2 pages

CASE REASSIGNED TO THOMAS DELANEY

26

06/08/2020

NV

EFFECTIVE 06/08/2020.

PEREMPTORY CHALLENGE UNDER C.C.P.

27 170.6 AS TO THE HONORABLE WALTER P. 06/08/2020

NV

SCHWARM FILED.

THIS CASE IS REASSIGNED TO THE

28 HONORABLE THOMAS A.DELANEY FOR ALL 06/08/2020

NV

PURPOSES.

MINUTES FINALIZED FOR CHAMBERS WORK

29

06/08/2020

06/08/2020 11:25:00 AM.

1 pages

30

CLERK'S CERTIFICATE OF

06/08/2020

2 pages s

MAILING/ELECTRONIC SERVICE

E-FILING TRANSACTION 41090213 RECEIVED

31

06/08/2020

NV

ON 06/08/2020 12:47:05 PM.

OPPOSITION FILED BY DON BARNES,IN HIS

OFFICIAL CAPACITY AS SHERIFF OF

32

06/08/2020

ORANGE COUNTY,CALIFORNIA ON

06/08/2020

17 pages

DECLARATION IN SUPPORT FILED BY DON

BARNES,IN HIS OFFICIAL CAPACITY AS

33

06/08/2020
SHERIFF OF ORANGE COUNTY,CALIFORNIA

ON 06/08/2020

19 pages

DECLARATION IN SUPPORT FILED BY DON

BARNES,IN HIS OFFICIAL CAPACITY AS

34

06/08/2020

SHERIFF OF ORANGE COUNTY,CALIFORNIA

ON 06/08/2020

5 pages

DECLARATION IN SUPPORT FILED BY DON

BARNES,IN HIS OFFICIAL CAPACITY AS

35

06/08/2020

SHERIFF OF ORANGE COUNTY,CALIFORNIA

ON 06/08/2020 EXHIBIT A Page 21

17 pages

ROA

Case

8:2C0a-scev:-02008-53556-J6G8DB,o0-cS7kH/0eK1t/2D02o0c,uImDe: n1#t1:871639-981946F3,ileDdkt0E6n/1tr9yF/:2i20l-2i,nPPgaaggeeF22i27Uoonffg214D54oPcaugmeeIDnt Date Party

Select

DECLARATION IN SUPPORT FILED BY DON

BARNES,IN HIS OFFICIAL CAPACITY AS

36

06/08/2020

SHERIFF OF ORANGE COUNTY,CALIFORNIA

ON 06/08/2020

23 pages i _ j

EX PARTE SCHEDULED FOR 06/10/2020 AT

38 01:30:00 PM IN C24 AT CENTRAL JUSTICE 06/08/2020

NV

CENTER.

THE EX PARTE IS SCHEDULED FOR 06/10/2020

39

06/08/2020

NV

AT 01:30 PM IN DEPARTMENT C24.

MINUTES FINALIZED FOR CHAMBERS WORK

40

06/08/2020

06/08/2020 01:36:00 PM.

1 pages r';

CLERK'S CERTIFICATE OF

41

06/08/2020

2 pages

MAILING/ELECTRONIC SERVICE

E-FILING TRANSACTION 3912254 RECEIVED

42

06/08/2020

ON 06/08/2020 12:56:53 PM.

NV

REQUEST FOR JUDICIAL NOTICE FILED BY

DON BARNES,IN HIS OFFICIAL CAPACITY AS

43

06/08/2020

SHERIFF OF ORANGE COUNTY,CALIFORNIA

ON 06/08/2020

147 pages

OBJECTION FILED BY DON BARNES,IN HIS

OFFICIAL CAPACITY AS SHERIFF OF

44

06/08/2020

ORANGE COUNTY,CALIFORNIA ON

06/08/2020

35 pages i j

CASE REASSIGNED TO MELISSA

45

06/08/2020

NV

MCCORMICK EFFECTIVE 06/08/2020.

EX PARTE REASSIGNED TO C13 AT CENTRAL

46 JUSTICE CENTER ON 06/10/2020 AT 01:30:00 06/08/2020

NV

PM.

EX PARTE SCHEDULED FOR 06/10/2020 AT

47 01:30:00PM IN C13 AT CENTRAL JUSTICE 06/08/2020

NV

CENTER.

THIS CASE IS REASSIGNED TO THE

48 HONORABLE MELISSA R. MCCORMICK FOR 06/08/2020

NV

ALL PURPOSES.

EX PARTE CONTINUED TO 06/10/2020 AT 01:30

49

06/08/2020

NV

PM IN DEPARTMENT.

MINUTES FINALIZED FOR CHAMBERS WORK

50

06/08/2020

06/08/2020 02:59:00 PM.

1 pages : 1

CLERK'S CERTIFICATE OF

51

MAILING/ELECTRONIC SEEXRHVIIBCIET A

06/08/2020

2 pages

Page 22

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:F22i0l-2i,nPPgaaggeeF22i38loiofnf2g1454Page ID

ROA

Docket

#:1985

Document Select
Date Party

53

MELISSA R. MCCORMICK RECUSED.

06/09/2020

NV

MINUTES FINALIZED FOR CHAMBERS WORK

55

06/09/2020

06/09/2020 09:04:00 AM.

1 pages

56

CLERK'S CERTIFICATE OF

06/09/2020

2 pages

MAILING/ELECTRONIC SERVICE

CASE REASSIGNED TO CHARLES MARGINES

57

06/10/2020

NV

EFFECTIVE 06/10/2020.

THE HONORABLE MELISSA R. MCCORMICK

58

06/10/2020

NV

RECUSED HERSELF.

THIS CASE IS REASSIGNED TO THE

59 HONORABLE CHARLES MARGINES FOR ALL 06/10/2020

NV

PURPOSES.

MINUTES FINALIZED FOR CHAMBERS WORK

60

06/10/2020

06/10/2020 03:31:00 PM.

1 pages

61

CLERK'S CERTIFICATE OF

06/10/2020

2 pages

MAILING/ELECTRONIC SERVICE

Name

Start Datej Type

Assoc

End

Date

DON WAGNER

PETITIONER

SCHONBRUN,SEPLOW,HARRIS,HOFFMAN
ATTORNEY &Z

06/04/2020]
06/04/2020|

CYNTHIA CAMPBELL

PETITIONER

06/04/2020]

MARK TRACE

PETITIONER

06/04/2020]

ORANGE COUNTY COUNSEL

ATTORNEY

06/08/2020]

CECIBEL CARIDAD ORTIZ

PETITIONER

06/04/2020]

SANDY GONZALEZ

PETITIONER

06/04/2020]

DON BARNES,IN HIS OFFICIAL CAPACITY A RESPONDENT

06/04/2020]

MONIQUE CASTILLO

PETITIONER

06/04/2020]

Hearings:
Description

|| Date

Time |

Department

Judge

Print this page

EXHIBIT A Page 23

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9196F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee2249ooff21454Page ID #:1986

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

CERTIFICATE OF SERVICE

2

I declare that I am a citizen of the United States employed in the County of Orange,

over 18 years old and that my business address is 333 W. Santa Ana Blvd., Ste. 407, Santa

3 Ana, California 92701; and my e-mail address is Marzette.lair@ coco.ocgov.com. I am not

a party to the within action.

4

BY CM/ECF: On June 19, 2020, I caused the document DEFENDANTS’

5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION

TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR

6 ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY

INJUNCTION to be served upon all counsel of record in this action who are registered with

7 the United States District Court’s CM/ECF system and listed below by utilizing the United

States District Court’s CM/ECF system:

8

MITCHELL KAMIN, ESQ

JOHN WASHINGTON, ESQ.

9 mkamin@cov.com

jwashington@sshhlaw.com

AARON LEWIS, ESQ.

SCHONBRUN, SEPLOW, HARRIS,

10 alewis@cov.com

HOFFMAN & ZELDES LLP

BRITTANY BENJAMIN, ESQ.

11 bbenjamin@cov.com

PETER ELIASBERG, ESQ.

COVINGTON & BURLING LLP

peliasberg@aclu.org

12

AMERICAN CIVIL LIBERTIES FUND OF

CASSANDRA STUBBS, ESQ.

SOUTHERN CALIFORNIA

13 cstubbs@aclu.org

AMERICAN CIVIL LIBERTIES

PAUL HOFFMAN, ESQ.

14 UNION FOUNDATION

hoffpaul@aol.com

UNIVERSITY OF CALIFORNIA, IRVINE

15 STACEY GRIGSBY, ESQ.

SCHOOL OF LAW CIVIL RIGHTS

sgrigsby@cov.com

LITIGATION CLINIC

16 AMIA TRIGG, ESQ.

atrigg@cov.com

CARL TAKEI, ESQ.

17 COVINGTON & BURLING LLP

ctakei@aclu.org

SOMIL TRIVEDI, ESQ.

18 OLIVIA ENSIGN, ESQ.

strivedi@aclu.org

oensign@aclu.org

CLARA SPERA, ESQ.

19 CRISTINA BECKER, ESQ.

cspera@aclu.org

cbecker@aclu.org

AMERICAN CIVIL LIBERTIES UNION

20 AMERICAN CIVIL LIBERTIES

FOUNDATION

UNION FOUNDATION

21

ZOE BRENNAN-KROHN, ESQ.

zbrennan-krohn@aclu.org

22

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

23

24

I declare that I am employed in the office of a member of the Bar of this Court at

whose direction the service was made.

25

Executed in Santa Ana, California this 19th day of June, 2020

26

_______s/Marzette L. Lair_______

27

28

24

Case 8:20-Ccav-s0e0:82305-5-J5G6B68-S, H07K/01D/2o0c2u0m,eIDnt: 8161-7239F96ile3d, D0k6t/E19n/t2ry0: 2P-2a,gPea1geof320 oPf 1a5g4e ID #:1987

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359

8

Attorneys for Defendants DON BARNES

9

and COUNTY OF ORANGE (erroneously named as ORANGE COUNTY, CALIFORNIA)

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

EASTERN DIVISION

14

MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,

Case No.

8:20-cv-00835-JGB-SHK

15

PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,

DECLARATION OF KAYLA N. WATSON IN SUPPORT OF

16

MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of

DEFENDANTS’ EX PARTE APPLICATION TO DISSOLVE MAY

17

themselves and all others similarly situated, et al.,

26, 2020 PRELIMINARY INJUNCTION; OR IN THE ALTERNATIVE, SET

18

Plaintiffs/Petitioners,

EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION

19

v.

20 DON BARNES, in his official capacity as

21

Sheriff of Orange County, California; and ORANGE COUNTY, CALIFORNIA.

22

23

Defendants/Respondents.

24

DECLARATION OF KAYLA N. WATSON

25

I, Kayla N. Watson, declare as follows:

26

1. I have personal knowledge of the facts contained in this declaration unless

27 such facts are stated on information and belief, in which case I believe them to be true. If

28 called upon to testify, I could and would do so competently.

-1-

Case 8:20-Ccav-s0e0:82305-5-J5G6B68-S, H07K/01D/2o0c2u0m,eIDnt: 8161-7239F96ile3d, D0k6t/E19n/t2ry0: 2P-2a,gPea2geof321 oPf 1a5g4e ID #:1988

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

2. I am a licensed California attorney and currently employed by the Orange

2 County Counsel’s Office as a Deputy County Counsel.

3

3. On June 12, 2020, the Court of Appeals issued an order denying the

4 Defendants’ motion for stay but remanded for the limited purpose of allowing this Court

5 to consider whether changed circumstances justify modifying or dissolving the

6 injunction.

7

4. On June 15, 2020, I emailed Plaintiffs’ counsel notifying them of

8 Defendants’ intent to file an ex parte application to dissolve the preliminary injunction or

9 the alternative for an order shortening time to hear the motion to dissolve preliminary

10 injunction.

11

5. On June 17, 2020, counsel for both parties met and conferred over the phone

12 regarding Defendants’ intent to file an ex parte application, and the grounds for such

13 relief, which Plaintiffs’ counsel disagreed with.

14

I declare under penalty of perjury under the laws of the United States that the

15 foregoing is true and correct.

16

Executed June 19, 2020, at Santa Ana, California.

17

18

_______/s/_________________________

19

Kayla N. Watson

20

21

22

23

24

25

26

27

28

-2-

Case 8:20-Ccav-s0e0:82305-5-J5G6B68-S, H07K/01D/2o0c2u0m,eIDnt: 8161-7339F96ile3d, D0k6t/E19n/t2ry0: 2P-2a,gPea1geof342 oPf 1a5g4e ID #:1989

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359

8

Attorneys for Defendants DON BARNES

9

and COUNTY OF ORANGE (erroneously named as ORANGE COUNTY, CALIFORNIA)

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

EASTERN DIVISION

14

MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,

Case No.

8:20-cv-00835-JGB-SHK

15

PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,

DECLARATION OF C. HSIEN

16

MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of

CHIANG, M.D. IN SUPPORT OF DEFENDANTS’ EX PARTE

17

themselves and all others similarly situated, et al.,

APPLICATION TO DISSOLVE MAY 26, 2020 PRELIMINARY INJUNCTION;

18

Plaintiffs/Petitioners,

OR IN THE ALTERNATIVE, SET EXPEDITED HEARING TO DISSOLVE

19

v.

PRELIMINARY INJUNCTION

20 DON BARNES, in his official capacity as

21

Sheriff of Orange County, California; and ORANGE COUNTY, CALIFORNIA.

22

23

Defendants/Respondents.

24

25

26

27

28

Case 8:20-Ccav-s0e0:82305-5-J5G6B68-S, H07K/01D/2o0c2u0m,eIDnt: 8161-7339F96ile3d, D0k6t/E19n/t2ry0: 2P-2a,gPea2geof343 oPf 1a5g4e ID #:1990

Case 8:20-Ccav-s0e0:82305-5-J5G6B68-S, H07K/01D/2o0c2u0m,eIDnt: 8161-7339F96ile3d, D0k6t/E19n/t2ry0: 2P-2a,gPea3geof344 oPf 1a5g4e ID #:1991

Case 8:20-Ccav-s0e0:82305-5-J5G6B68-S, H07K/01D/2o0c2u0m,eIDnt: 8161-7339F96ile3d, D0k6t/E19n/t2ry0: 2P-2a,gPea4geof345 oPf 1a5g4e ID #:1992
EXHIBIT A Page 3

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 136ofo1f 7154Page ID #:1993

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and ORANGE COUNTY, CALIFORNIA

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

15 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
16 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
17 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
18 themselves and all others similarly situated, et al.,
19
Plaintiffs/Petitioners,
20
v.
21
DON BARNES, in his official capacity as 22 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
23
Defendants/Respondents.
24

Case No. 8:20-cv-00835-JGB-SHK

Assigned to the Honorable Jesus G. Bernal

DECLARATION OF CAPTAIN MARTIN RAMIREZ IN SUPPORT OF DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65]

Action Filed:

April 30, 2020

25

26

27

28

DECLARATION OF CAPTAIN MARTIN RAMIREZ

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 237ofo1f 7154Page ID #:1994

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 338ofo1f 7154Page ID #:1995

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 439ofo1f 7154Page ID #:1996

EXHIBIT

A

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 540ofo1f 7154Page ID #:1997

m lm

&laa k 0 m

Illq#d++ilmm

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 641ofo1f 7154Page ID #:1998

EXHIBIT

B

Case

8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c, uIDm:e1n1t 78369-4963F,ilDekdtE06n/t1ry9:/220-2,

PPaaggee

742ofo1f 7154Pa} 0g'11'ela-

t4lxH
ID

#:1999

.,, ., ,pepentrgs,

.

"' 4ga@ffiKq,@i:,log
proven@inn

1. BAIL
i(714)

0%
7f
igrr

REST !ERT
Ij

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 843ofo1f 7154Page ID #:2000

EXHIBIT

C

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-4963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 944ofo1f 7154Page ID #:2001

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9496F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1405ooff11754Page ID #:2002

EXHIBIT

D

Ig

Case 8:20-cv-00835-JGB-SHK Document 86-4 Filed 06/19/20 Page 11 of 17 Page ID #:2003

';m

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 46 of 154
!!=i

I '

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9496F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1427ooff11754Page ID #:2004

EXHIBIT

E

Case 8:20-cv-00835-JGB-SHK Document 86-4 Filed 06/19/20 Page 13 of 17 Page ID #:2005

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 48 of 154
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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9496F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1449ooff11754Page ID #:2006

EXHIBIT

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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9496F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1550ooff11754Page ID #:2007
i

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9496F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1561ooff11754Page ID #:2008

EXHIBIT

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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9496F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1572ooff11754Page ID #:2009

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 153ofo2f 5154Page ID #:2010

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and ORANGE COUNTY, CALIFORNIA

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

15 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
16 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
17 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
18 themselves and all others similarly situated, et al.,
19
Plaintiffs/Petitioners,
20
v.
21
DON BARNES, in his official capacity as 22 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
23
Defendants/Respondents.
24

Case No. 8:20-cv-00835-JGB-SHK

Assigned to the Honorable Jesus G. Bernal

DECLARATION OF CAPTAIN LISA VON NORDHEIM IN SUPPORT OF DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65]

Action Filed:

April 30, 2020

25

26

27

28
DECLARATION OF CAPTAIN LISA VON NORDHEIM

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 254ofo2f 5154Page ID #:2011
2

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 355ofo2f 5154Page ID #:2012
3

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 456ofo2f 5154Page ID #:2013
EXHTBTT A
4

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Case 8:20-cv-00835-JGB-SHK Document 86-5 Filed 06/19/20 Page 5 of 25 Page ID #:2014
5

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 658ofo2f 5154Page ID #:2015

EXHIBIT

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6

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7

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 860ofo2f 5154Page ID #:2017

EXHIBIT

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8

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-5963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 961ofo2f 5154Page ID #:2018
9

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EXHIBIT

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10

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Case 8:20-cv-00835-JGB-SHK Document 86-5 Filed 06/19/20 Page 11 of 25 Page ID #:2020
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EXHIBIT

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12

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EXHIBIT

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14

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16

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EXHIBIT

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18

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EXHIBITI
20

Case 8:20-cv-00835-JGB-SHK Document 86-5 Filed 06/19/20 Page 21 of 25 Page ID #:2030
21

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 73 of 154
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EXHIBIT

J

22

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 75 of 154

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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9596F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee2746ooff21554Page ID #:2033

EXHIBIT

K

24

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 77 of 154

Case 8:20-cv-00835-JGB-SHK Document 86-5 Filed 06/19/20 Page 25 of 25 Page ID #:2034
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 178ofo1f 7154Page ID #:2035

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and ORANGE COUNTY, CALIFORNIA

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

15 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
16 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
17 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
18 themselves and all others similarly situated, et al.,
19
Plaintiffs/Petitioners,
20
v.
21
DON BARNES, in his official capacity as 22 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
23
Defendants/Respondents.
24

Case No. 8:20-cv-00835-JGB-SHK

Assigned to the Honorable Jesus G. Bernal

DECLARATION OF CAPTAIN PATRICK RICH IN SUPPORT OF DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65]

Action Filed:

April 30, 2020

25

26

27

28

DECLARATION OF CAPTAIN PATRICK RICH

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 279ofo1f 7154Page ID #:2036

DECLARATION

OF CAPT AIN PATRICK

RICH

I, Patrick Rich, declare as follows:

1.

Unless otherwise stated, I have personal knowledge of the facts contained in

this declaration unless such facts are stated on information and belief, in which case I

believe them to be true. If called upon to testify, I could and would do so competently.

2.

I am employed by the Orange County Sheriffs Department ("OCSD").

I

have been employed by OCSD for the last 26 years. I currently hold the rank of Captain

of the Theo Lacy Facility.

3.

As a Captain in this position, I am the facility manager and have been

delegated the responsibility

of the day to day operation of the facility.

4.

I took the photographs of Theo Lacy Facility ("TLF") attached here as

Exhibits. The photographs attached fairly and accurately depict various areas in TLF at

the time the photographs were taken, which was the morning of June 18, 2020.

a) Exhibit A is a photograph of the TLF medical waiting area. The benches

are marked with social distancing markers with contain blue pieces of tape

so the inmates can practice social distancing while waiting to be seen by

medical. In addition, the picture shows one of the inmates wearing a facial

covering while waiting to be seen by medical.

19

b) Exhibit B is a photograph of the H Barracks dayroom with social distancing

markers leading from the exit door.

c) Exhibit C is a photograph of the Mod M dayroom. The photograph also

depicts hand sanitizer, bottle of disinfectant and paper towels on the

dayroom table.

d) Exhibit D is a photograph of an H Barracks cube where inmates store ex

toilet paper. There are 32 cubes in each barraack.

e) Exhibit E is a photograph of the Mod M "beach" where extra toilet paper is

stacked and available for the inmates.

-1-

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 380ofo1f 7154Page ID #:2037

1

f) Exhibit F is a photograph of a staff member using electromagnetic

spray

2

sanitizer to disinfect high touch surfaces, which is done twice daily. This

3

photo shows the staff member disinfecting the tables in the H Barracks.

4

g) Exhibit G is a photograph of a two man cell in Mod K where there are

5

stacks of toilet paper next to the cell toilet.

6

7

I declare under penalty of perjury under the laws of the United States of America

8 and the State of California that the foregoing is true and correct.

9

Executed June 18, 2020, at Orange, California.

10

11

,7

-

.

' Patrick Rich

o

24 -2-

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 481ofo1f 7154Page ID #:2038

EXHIBIT

A

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 582ofo1f 7154Page ID #:2039

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 683ofo1f 7154Page ID #:2040

EXHIBIT

B

Case 8:20-cv-00835-JGB-SHK Document 86-6 Filed 06/19/20 Page 7 of 17 Page ID #:2041

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 84 of 154
/ a.11

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-6963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 885ofo1f 7154Page ID #:2042

EXHIBIT

C

Case 8:20-cv-00835-JGB-SHK Document 86-6 Filed 06/19/20 Page 9 of 17 Page ID #:2043

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 86 of 154 l'

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EXHIBIT

D

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9696F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1818ooff11754Page ID #:2045

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9696F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1829ooff11754Page ID #:2046

EXHIBIT

E

fCase

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ID

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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9696F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1941ooff11754Page ID #:2048

EXHIBIT

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Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9696F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1952ooff11754Page ID #:2049

Case 8:2C0a-scev:-02008-53556-J6G8B, 0-S7H/0K1/2D02o0c,uImDe: n1t18763-9696F3,ileDdkt0E6n/1tr9y/:220-2,PPaaggee1963ooff11754Page ID #:2050

EXHIBIT

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Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 94 of 154

-"1

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Case 8:20-cv-00835-JGB-SHK Document 86-6 Filed 06/19/20 Page 17 of 17 Page ID #:2051

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 195ofo2f 8154Page ID #:2052

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359

8

Attorneys for Defendants DON BARNES

9

and COUNTY OF ORANGE (erroneously named as ORANGE COUNTY, CALIFORNIA)

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

EASTERN DIVISION

14

MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,

Case No.

8:20-cv-00835-JGB-SHK

15

PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,

16

MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of

DECLARATION OF DALLAS HENNESSEY IN SUPPORT OF

17

themselves and all others similarly situated, et al.,

DEFENDANTS’ EX PARTE APPLICATION TO DISSOLVE MAY

18

Plaintiffs/Petitioners,

26, 2020 PRELIMINARY INJUNCTION;

19

v.

OR IN THE ALTERNATIVE, SET EXPEDITED HEARING TO DISSOLVE

20 DON BARNES, in his official capacity as PRELIMINARY INJUNCTION

21

Sheriff of Orange County, California; and ORANGE COUNTY, CALIFORNIA.

22

23

Defendants/Respondents.

24

25

26

27

28

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 296ofo2f 8154Page ID #:2053

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

DECLARATION OF SERGEANT DALLAS HENNESSEY

2

I, Dallas Hennessey, declare as follows:

3

1. Unless otherwise stated, I have personal knowledge of the facts contained in

4 this declaration unless such facts are stated on information and belief, in which case I

5 believe them to be true. If called upon to testify, I could and would do so competently.

6

2. I am employed by the Orange County Sheriff’s Department (“OCSD”). I

7 have been employed by OCSD for the last 21 years. I currently hold the rank of Sergeant

8 of the Special Services Bureau - Population Management Unit for the Orange County

9 Jail.

10

3. As a Sergeant in this position, I oversee the classification and housing of all

11 inmates at all custodial facilities. I manage, in conjunction with CHS, I manage tracking

12 and appropriately housing all inmates in medical quarantine and medical isolation

13 housing due to the COVID-19 pandemic.

14

4. I have reviewed the declarations submitted in support of Plaintiffs pleadings

15 in this matter and have investigated the allegations contained therein.

16

a) Plaintiff Melissa Ahlman (Declarations at Dkts. 41-19, 41-41, 57-1, 79-33,

17

79-34.)

18

i. Plaintiff Ahlman is housed in the Women’s Jail, tank P-13. Plaintiff

19

Ahlman alleges that the sink in her bathroom has been broken for two

20

weeks, (Dkt. 79-34 ¶ 7) does not have enough cleaning supplies, (Id. ¶

21

10), hygiene supplies (Dkt. 79-33 ¶ 6; 57-1, ¶ 6), or hand sanitizer.

22

(Dkt. 79-34, ¶ 5.)

23

ii. I am informed and believe that Plaintiff Ahlman has not filed a

24

grievance for the alleged broken sink, nor filed a grievance requesting

25

additional cleaning supplies, hygiene supplies or hand sanitizer.

26

iii. I am informed and believe that on April 24, Ahlman filed a grievance

27

regarding not getting adequate protecting from the Coronavirus. The

28

grievance was responded to with an explanation that OCSD is

-1DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 397ofo2f 8154Page ID #:2054

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

following all CDC Guidelines and working CHS to ensure proper

2

COVID measures are in place.

3

iv. Plaintiff Ahlman alleges that when she goes to the medical unit there

4

is never enough room to keep six feet apart and that they might put

5

someone with virus symptoms on the bench with her. (Dkt. 41-19, ¶

6

14.)

7

v. I am informed and believe that when inmates leave their sector to go

8

to medical, they are instructed to wear a mask to practice safe social

9

distancing. In addition, there are blue pieces of tape on the medical

10

benches to give the inmates six feet of social distancing. There are

11

only as many inmates waiting in the medical unit as there are blue

12

tape marks.

13

b) Plaintiff Daniel Kauwe: (Dkt. 41-28, 41-37)

14

i. Plaintiff Kauwe is housed in Theo Lacy Facility, Mod O, sector 41.

15

Plaintiff Kauwe alleges that he goes to dayroom with 2 other

16

inmates and cannot socially distance in the dayroom. (Dkt. 41-28, ¶

17

6.) Plaintiff Kauwe alleges that “[e]ven if we try to space out at the

18

tables in the dayroom, we are likely not meeting the six foot distance

19

requirement.” (Id.)

20

ii. I am informed and believe that the dayroom in TLF, Mod O, sector

21

41 is large enough to hold 3 people and maintain more than 6 feet

22

separation. The dayroom has 4 tables that seat 4 people each, 4

23

telephones, and 2 showers. In addition, it is recommended that

24

inmates wear a mask when using the dayroom to practice safe social

25

distance measures.

26

c) Plaintiff Javier Esparza: (Dkts. 41-15, 41-33.)

27

28

-2DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 498ofo2f 8154Page ID #:2055

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

i. Plaintiff Esparza is housed in Theo Lacy Facility, Mod P, sector 45.

2

Plaintiff Esparza alleges that he has only been given a ripped up sheet

3

to cover his face and has not been given a mask. (Dkt. 41-15, ¶ 9.)

4

i. I am informed and believe that all inmates at Theo Lacy were given

5

face coverings/face masks beginning April 51. Since April 5, all

6

inmates can exchange their face coverings/masks upon request or

7

during clothing exchange, which now occurs daily.

8

d) Plaintiff Pedro Bonilla: (Dkt. 41-20.)

9

ii. Plaintiff Bonilla is housed at Theo Lacy Facility in Mod K, sector 14.

10

Plaintiff Bonilla alleges that he uses the dayroom with 7 other people

11

and cannot socially distance. (Dkt. 41-20, ¶ 7.)

12

iii. I am informed and believe that when inmates leave their sector to go

13

to dayroom, they are instructed to wear a mask to practice safe social

14

distancing. The dayroom in TLF, Mod K, sector 14 is large enough to

15

hold 8 people and maintain more than 6 feet separation. The dayroom

16

has 8 tables that seat 4 people each, 4 telephones, and 2 showers. If

17

an inmate must use the phone at the same time as someone else, it is

18

recommended that they wear a face mask.

19

iv. Plaintiff Bonilla alleges that he has not been given adequate cleaning

20

supplies or soap. (Dkt. 41-20.)

21

v. I am informed and believe that Plaintiff Bonilla has never filed a

22

grievance for additional cleaning supplies or soap. See photos

23

attached to Declaration of Captain Rich showing the cleaning

24

supplies, disinfectant and soap available to the inmates.

25

e) Plaintiff Mark Trace: (Dkts. , 41-11, 41-13, 41-24, 41-38, 41-39.)

26

27
1 The face coverings have evolved over time. In early April, due to a shortage of masks, OCSD made face coverings out of
28 cloth for the inmates. Now OCSD has painter’s masks as well as cloth face coverings available to inmates so the exact type
of face covering may vary among the inmates but every inmate is provided with a face covering or face mask of some type.
-3DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 599ofo2f 8154Page ID #:2056

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

i. Plaintiff Trace is housed in Central Men’s Jail in Mod D, tank 20.

2

Plaintiff Trace alleges that 2 to 3 inmates have access to the

3

dayroom at a time and that it is not possible to socially distance in

4

the dayroom. (Dkt. 41-13, ¶ 14.) Trace alleges that he must use the

5

phone and showers with 2 to 3 other inmates in the dayroom and that

6

it is not possible to spread out. (Id. ¶¶ 14-15.)

7

ii. I am informed and believe that since April 7, Plaintiff Trace goes to

8

dayroom alone due to his classification in the Jail. Plaintiff Trace

9

uses the phones and showers alone.

10

iii. Plaintiff Trace alleges that he does not have adequate cleaning

11

supplies or soap. (Id. ¶¶ 13, 16.)

12

i. I am informed and believe that Plaintiff Trace has never filed a

13

grievance for additional cleaning supplies or soap. See photos of

14

Central Men’s Jail attached to Declaration of Captain Von Nordheim

15

showing the cleaning supplies and soap available to all inmates in

16

the Jail.

17

f) Plaintiff Don Wagner: (Dkts. 41-4, 41-12, 41-35.)

18

i. Plaintiff Wagner is housed in Theo Lacy Facility, Mod P, sector 47.

19

Plaintiff Wagner alleges that he has not been given a mask, does not

20

have adequate cleaning supplies or soap. (Dkt. 41-4, ¶¶ 11, 15, 18;

21

Dkt. 41-12, ¶¶ 5, 6.)

22

ii. I am informed and believe that all inmates at Theo Lacy were given

23

face coverings/face masks beginning April 5. Since April 5, all

24

inmates can exchange their face coverings/masks upon request or

25

during clothing exchange, which now occurs daily.

26

iii. I am informed and believe that Plaintiff Wagner has never filed a

27

grievance for additional cleaning supplies or soap. (See Photos)

28

-4DECLARATION OF SERGEANT HENNESSEY

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9763F, DilekdtE0n6t/r1y9: /22-02, PPaaggee160o0fo2f815P4age ID #:2057

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

iv. Plaintiff Wagner alleges that he filed grievances on April 24 and May

2

6 regarding COVID related concerns. (See Dkt. 41-35, ¶¶ 3-4.)

3

v. I am informed and believe that Plaintiff Wagner has zero grievances

4

in the system.

5

vi. Plaintiff Wagner alleges that he cannot socially distance from his

6

cell mate that he shares a cell with 21 hours a day. (Dkt. 41-12, ¶ 3.)

7

Wagner alleges that he goes to dayroom with 7 other inmates and

8

does not know if they have tested positive for COVID. (Id. ¶ 4.)

9

vii. I am informed and believe that Wagner’s cellmate does not have

10

COVID nor has he been in contact with known COVID. In addition,

11

there have been no known COVID cases that originated at the Theo

12

Lacy Facility. All the known COVID cases originated out of Central

13

Men’s and Central Women’s Jail. If someone with COVID is housed

14

at Theo Lacy it is because they were placed there to quarantine and

15

isolate. Those inmates do not have any face-to-face interaction with

16

other inmates until they have completed quarantine and tested

17

negative. Further, Plaintiff Wagner has been given a mask to practice

18

safe social distancing measures when outside of his cell.

19

g) Declarant Jose Armendariz: (Dkts. 41-10, 79-21)

20

i. Inmate Armendariz is housed in Theo Lacy Facility, Mod O, sector

21

41. He is housed in a cell by himself. Inmate Armendariz alleges

22

that he shares a dayroom and showers with 13 to 15 other inmates.

23

(Dkt. 79-21, ¶¶ 18, 19.)

24

iii. Inmate Armendariz goes to the dayroom with 4 other inmates, (5)

25

total. The dayroom in TLF, Mod O, sector 41, is large enough to

26

hold 5 people and maintain more than 6 feet separation. The

27

dayroom has 4 tables that seat 4 people each, 4 telephones, and 2

28

-5DECLARATION OF SERGEANT HENNESSEY

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9763F, DilekdtE0n6t/r1y9: /22-02, PPaaggee170o1fo2f815P4age ID #:2058

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

showers. In addition, it is recommended that inmates wear a mask

2

when using the dayroom to practice safe social distance measures.

3

ii. Inmate Armendariz alleges that he filed a grievance about diluted

4

disinfectant. (Dkt. 79-21, ¶ 24.) Armendariz alleges he does not

5

have access to hand sanitizer, adequate amount of soap or cleaning

6

supplies. (Id. ¶¶ 23, 24, 26, 27.)

7

vi. I am informed and believe that Armendariz has zero grievances on

8

file. See photos attached to Declaration of Captain Rich showing the

9

cleaning supplies, disinfectant and soap available to the inmates.

10

h) Declarant Enrique Hernandez: (Dkt. 41-22.)

11

i. Inmate Hernandez is housed in Central Men’s Jail, Mod F, tank 32.

12

ii. Inmate Hernandez alleges that his mask is ripped, and no one has

13

offered him a new mask. (Id. ¶ 17.)

14

iii. I am informed and believe that all inmates at Central Men’s Jail

15

were given face coverings/face masks on or around April 5. Since

16

April, all inmates can exchange their face coverings/masks upon

17

request or during clothing exchange, which now occurs daily.

18

iv. Hernandez alleges that if he sleeps with his feet facing a cellmate’s

19

feet, their feet will touch each other’s during the night. (Id. ¶ 7.)

20

v. I am informed and believe that as of today’s date there are 2 empty

21

bunks in his cell and Hernandez could sleep in one of those empty

22

bunks to get more space while sleeping.

23

vi. Inmate Hernandez alleges that there is no way to disinfect the

24

phones during each use. (Id. ¶ 27.)

25

vii. I am informed and believe that there are disinfectant spray bottles

26

and paper towels in all living areas to disinfect the phones

27

before/after each use as well as to disinfect common living areas.

28

See photos of Central Men’s Jail attached to Declaration of Captain

-6DECLARATION OF SERGEANT HENNESSEY

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9763F, DilekdtE0n6t/r1y9: /22-02, PPaaggee180o2fo2f815P4age ID #:2059

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

Von Nordheim showing the disinfectant and cleaning supplies

2

available to all inmates in the common areas.

3

viii. Inmate Hernandez alleges that when receiving meals or during count

4

time, the inmates must line up close together. (Id. ¶¶ 21, 27.)

5

ix. I am informed and believe that the inmates do line up close together

6

at the cell bars for count, but the inmates are told to wear their face

7

coverings during count.

8

x. Inmate Hernandez alleges that when he goes to outdoor recreation

9

time, he goes with 40 to 100 people. (Id. ¶ 30.)

10

xi. I am informed and believe that roof recreation is scheduled with the

11

inmates in his living area which consists of approximately 80

12

maximum inmates. Roof recreation is an outdoor area that is

13

roughly half an acre. The outdoor area is large enough to maintain

14

social distance even with 80 inmates present at the same time. In

15

addition, it is requested that the inmates wear a face covering

16

whenever the inmates are out of their living area.

17

i) Declarant Donald Timmons: (Dkt. 57-5.)

18

i. Inmate Timmons is housed in Central Men’s Jail, Mod C, tank 12.

19

Inmate Timmons alleges that he does not have adequate cleaning

20

supplies or soap. (Dkt. 57-5, ¶¶ 12-13.)

21

ii. I am informed and believe that Timmons has never filed a grievance

22

while being in custody. See photos of Central Men’s Jail attached to

23

Declaration of Captain Von Nordheim showing the disinfectant and

24

cleaning supplies and ample amount of soap available to all inmates.

25

j) Declarant Mitchell John Lentz: (Dkt. 41-18.)

26

i. Inmate Lentz in housed in Central Men’s Jail, Mod C, tank 16.

27

Inmate Lentz alleges that he does not have adequate cleaning

28

supplies or hygiene supplies. (Dkt. 41-18, ¶¶ 19, 22.)

-7DECLARATION OF SERGEANT HENNESSEY

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9763F, DilekdtE0n6t/r1y9: /22-02, PPaaggee190o3fo2f815P4age ID #:2060

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

ii. I am informed and believe that Lentz has never filed a grievance

2

while being in custody. See photos of Central Men’s Jail attached to

3

Declaration of Captain Von Nordheim showing the disinfectant and

4

cleaning supplies and ample amount of soap available to all inmates.

5

k) Declarant Carlos Godinez Sanchez: (Dkt. 41-16, ¶ 21.)

6

i. Inmate Sanchez is housed in Central Men’s Jail in Mod A, tank 5.

7

Inmate Sanchez alleges that since being moved to Mod A he has only

8

received outdoor recreation two times. (Dkt. 41-16, ¶ 21.)

9

ii. I am informed and believe that inmates in sector 5, were given (5)

10

opportunities to go to roof recreation from 3-28 to 4-24, the dates he

11

was housed in that housing area. In addition, roof recreation was

12

limited during the COVID outbreak out at the CMJ due to many

13

inmates being under quarantine.

14

iii. I am informed and believe that inmate Sanchez has never filed a

15

grievance for any issues of confinement.

16

l) Declaration Jaime Herrera: (Dkt. 41-23, ¶¶ 9, 11.)

17

i. Inmate Herrera is housed in Central Men’s Jail in Mod D, tank 19.

18

Inmate Herrera alleges that he does not have adequate hygiene

19

supplies, soap and cleaning products. (Dkt. 41-23, ¶¶ 9, 11.)

20

ii. I am informed and believe that inmate Herrera has never filed a

21

grievance for any issues of confinement. See photos of Central

22

Men’s Jail attached to Declaration of Captain Von Nordheim

23

showing the disinfectant and cleaning supplies and ample amount of

24

soap available to all inmates.

25

m) Declarant Charles Lucious:

26

i. Inmate Lucious is housed in Theo Lacy Facility, Mod O, sector 39.

27

Inmate Lucious alleges that he does not have adequate cleaning

28

-8DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 11004ofo2f 8154Page ID #:2061

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

supplies, soap, and a torn sheet to use as a mask. (Dkt. 57-2, ¶¶ 7-8,

2

16.)

3

ii. I am informed and believe that all inmates at Theo Lacy were given

4

face coverings/face masks beginning April 5. Since April, all

5

inmates are able to exchange their face coverings/masks upon request

6

or during clothing exchange, which now occurs daily.

7

iii. I am informed and believe that inmate Lucious has never filed a

8

grievance for additional soap, masks, or cleaning supplies. See

9

photos of Central Men’s Jail attached to Declaration of Captain Von

10

Nordheim showing the disinfectant and cleaning supplies and ample

11

amount of soap available to all inmates.

12

n) Declarant David Mejia Sanchez:

13

i. Inmate Sanchez is housed in Theo Lacy, Mod P, sector 45. Inmate

14

Sanchez alleges that he shares a dayroom with 7 other inmates, that it

15

is impossible to socially distance in the dayroom, and there is no way

16

to clean the phones after each use. (Dkt. 79-30, ¶ 10.)

17

ii. Inmate Sanchez goes to the dayroom with a total of (8) inmates in his

18

dayroom group. The dayroom in TLF, Mod P, sector 45 is large

19

enough to hold 8 people and maintain more than 6 feet separation.

20

The dayroom has 8 tables that seat 4 people each, 4 telephones, and 2

21

showers. In addition, it is recommended that inmates wear a mask

22

when using the dayroom to practice safe social distance measures.

23

iii. I am informed and believe that there are disinfectant spray bottles

24

and paper towels in all living areas to disinfect the phones

25

before/after each use as well as to disinfect common living areas.

26

See photos attached to Declaration of Captain Rich showing the

27

cleaning supplies and disinfectant in all living areas.

28

-9DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 11105ofo2f 8154Page ID #:2062

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

iv. Inmate Sanchez alleges that he does not have adequate cleaning

2

supplies or hygiene supplies (Id. ¶¶ 11-16) and has not had clean

3

towels in 3 weeks. (Id. ¶ 18.)

4

v. I am informed and believe that prior to COVID, inmates were given

5

clothing exchange twice a week where they should receive clean

6

towels. Since the implementation of COVID procedures, inmates are

7

given clothing exchange every day where they should receive clean

8

towels.

9

vi. I am informed and believe that inmate Sanchez has never filed a

10

grievance regarding not having clean towels, inadequate cleaning

11

supplies or hygiene supplies. However, inmate Sanchez has filed one

12

grievance to inmate food services regarding his peanut allergy. See

13

photos attached to Declaration of Captain Rich showing ample

14

amount of cleaning and hygiene supplies.

15

vii. Inmate Sanchez alleges that he shares recreation time with 192

16

people. (Id. ¶ 17.)

17

viii. I am informed and believe that inmate Sanchez’s housing area

18

consists of a total of 192 inmates. However, only (32) inmates’

19

maximum, (one sector) would go to outdoor recreation at one time.

20

In addition, inmates are asked to wear a face covering when leaving

21

their cell/living area.

22

o) Declarant Jeffrey Davis: (Dkt. 79-32, ¶¶ 3-5.)

23

i. Inmate Davis is housed in Theo Lacy, Mod P, sector 45. Inmate

24

Davis alleges that his mask is a torn piece of cloth, he does not have

25

adequate cleaning supplies or enough soap. (Dkt. 79-32, ¶¶ 3-5.)

26

ii. I am informed and believe that all inmates at Theo Lacy were given

27

face coverings/face masks beginning April 5. Since April 5, all

28

-10DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 11206ofo2f 8154Page ID #:2063

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

inmates can exchange their face coverings/masks upon request or

2

during clothing exchange, which now occurs daily.

3

iii. I am informed and believe that inmate Davis has never filed a

4

grievance regarding his mask, or not having enough cleaning supplies

5

or soap.

6

iv. Inmate Davis is housed in a cell with one other inmate and alleges

7

that he cannot socially distance from his cellmate. (Id. ¶ 6.)

8

v. I am informed and believe that his cellmate does not have COVID or

9

been in contact with known COVID. In addition, Davis has been

10

given a mask to practice safe social distancing measures. If Inmate

11

Davis needs a new mask, he can request one.

12

p) Declarant Jose Cota: (Dkt. 41-10, ¶ 16.)

13

i. Inmate Cota is housed in Theo Lacy, Mod N, sector 32. Inmate Cota

14

alleges that his mask is a torn piece of cloth, he does not have

15

adequate cleaning supplies or enough soap. (Dkt. 41-10, ¶ 16.)

16

ii. I am informed and believe that all inmates at Theo Lacy were given

17

face coverings/face masks beginning April 5. Since April 5, all

18

inmates can exchange their face coverings/masks upon request or

19

during clothing exchange, which now occurs daily.

20

iii. I am informed and believe that inmate Cota has never filed a

21

grievance regarding his mask, or not having enough cleaning supplies

22

or soap.

23

q) Declarant Korrell Cole: (Dkt. 41-10, ¶ 24.)

24

i. Inmate Cole is housed in Theo Lacy, Mod N, sector 31. Inmate Cole

25

alleges that an inmate was moved to his sector in May who had

26

COVID and they all comingle in the dayroom. (Dkt. 41-10, ¶ 24.)

27

28

-11DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 11307ofo2f 8154Page ID #:2064

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

ii. Inmate Cole is under a certain classification that requires him to be

2

kept separate from all other inmates. Cole goes to dayroom by

3

himself and not with any other inmates.

4

iii. Inmate Cole alleges that his cloth mask is made from soiled sheets,

5

with stains of feces and blood. (Id. ¶ 17.)

6

iv. I am informed and believe that all inmates at Theo Lacy were given

7

face coverings/face masks beginning April 5. Since April 5, all

8

inmates can exchange their face coverings/masks upon request or

9

during clothing exchange, which now occurs daily.

10

v. I am informed and believe that Inmate Cole has never filed a

11

grievance regarding his mask or needing additional soap or cleaning

12

supplies.

13

r) The Following Declarants Have Been Released from OCSD Custody:

14

i. Dalton James Cardone: (Dkt. 41-25, 79-13.) Released on May 22,

15

2020.

16

ii. Leonard Farias: (Dkt. 41-17, 79-23.) Released on April 27, 2020.

17

iii. Fernando Maldonado: (Dkt. 79-15.) Released on April 29, 2020.

18

iv. Julian Miranda, Jr.: (Dkt. 41-19, 79-19.) Released on May 6,

19

2020.

20

v. Praney Saem: (Dkt. 41-29, 79-5.) Released

21

vi. Sean S. Wells: (Dkt. 79-16.) Released

22

vii. Plaintiff Michael Seif: (Dkts. 41-13, 41-32, 57-4.) Released on June

23

2, 2020.

24

5. Attached as Exhibit A is a true and correct copy of the list of all medically

25 vulnerable inmates in the Orange County Jail, their criminal charges, whether they are a

26 pre-trial inmate, whether they qualify for bail, on probation or parole, etc.

27

6. This chart is significant because the inmate’s full criminal history

28 determines what classification level, he/she belongs in and how inmates are housed.

-12DECLARATION OF SERGEANT HENNESSEY

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-7963F,ilDekdtE06n/t1ry9:/220-2, PPaaggee 11408ofo2f 8154Page ID #:2065

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 15 of 28 Page ID #:2066

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 109 of 154

CHAR6ESCHARGESCHARGESCHAR6ESCHARGESCHARGESCHARGESCHARGESCHARGESCHARGE5CHARGES
PC 187(A) MURDER/ PC290(A)(l)(A) REGISTER SEX OFFENDER PC COURTORDER/WI 6600 SEX PREDATOR PC COURTORDER/WI 6600 SEX PREDATOR PC 187•MUROERPC 187- MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187- MURDER PC 187(A) MURDER,PC 653F(A)SOLICIT SPECIFIC CRIMINAL ACT
PC 187- MURDER,PC 186.22 - CRIMINAL STREET GANGPC187 - MURDER,PC 186.22 - CRIMINAL STREET GANG PC 187(A)MURDER/PC 1203.2 PC 187(A) MURDER/PC 1203.2 PC 187(A)MURDER/ PC 1203.2 PC 187(A)MURDER,PC 3056 VIOLATION OF PAROLE,PC 251(A)(2)ASSLTl COMMIT RAPE PC 288 - L&L ACTS W/CHILD UNDER 14,PC 273AA - CHILD ENDANGERMENT PC 288(A)L&L W/CHILD UNDER 14/PC288.7(B)ORAL COP CHILD UNDER 10 PC 187(A) MURDER/ PC3056- PAROLE VIOLATION PC 187(A) MURDER/ PC3056- PAROLE VIOLATION
PC 187- MURDER,PC 186.22 - GANG INVOLVE PUBLIC OFFENSE
PC 187 - MURDER,PC 288 - L&L W/CHILD UNDER 14,PC 273 - ASSAULT W/GBI TO CHILD PC 288(A)L&L W/CHILD/ PC 266/PC266J PROCURE CHILD UNDER 16/PC288.7{A)SEX W/CHILD UNDER 10 PC 29800(A)(1)EX-FELON WITH FIREARM/VC 10851(A)VEHICLE THEFT PC 187- MURDER.US 1325•VIOL OF IMMIGRATIONPC 187- MURDER,US 1325- VIOL OF IMMIGRATION PC 288.7(A)SEX W/CHILD UNDER 10 YRS/PC 288(A) L&L W/CHILD UNDER 14 PC 288(A)L&L W/CHILD UNDER 14, PC 288.7(B)ORAL COP CHILD UNDER 10 YRS PC 191.5 s VEH. MANSLAUGHTER, VC 23153 - DUI CAUSING GBI PC 187(A) MURDERPC 187(A) MURDERPC 187(A) MUROERPC 187(A) MURDERPC 187(A) MURDER PC 187(A) MUROERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDER PC 288(A)L&L W/ CHILD UNDER UPC 288(A)L&L W/CHILD UNDER UPC 288(A)L&L W/CHILD UNDER 14 PC 288(A) L&L W/CHILD UNDER U/PC 288.5(A) CONT SEX ABUSE OF CHILD PC 664/187 ATTEMPTED MUR0ER/PC594(A) VANDALISM PC24S ASSAULT W/DEAOLY WEAPON
PC 288 - L&L ACTS W/ CHILD UNDER 14, US 1325 • VIOL OF IMMIGRATION PC664/187- ATTEMPT MURDER,PC 273AA - CHILD ENDANGERMENT
PC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDER PC 209(B)(1)KIDNAP: ROBBERY/PC261(A)(2)ASSAULT COMMIT RAPE PC 1203.2 REVOKE PROBATION, PC 273.5(A) CORPORAL INJ OF SPOUSE PC 288 - L&L ACTS W/CHILD UNDER 10/ORAL COP./ CONTINUAL SEXUAL ABUSE OF CHILD
PC 187- MURDER,PC459- BURGLARYPC 187 - MURDER,PC 459 - BURGLARY
PC 245(A)(1)ASSAULT W/DEADLY WEAPON/PC 215(A)CARJACKING/PC 664/10851(A)ATTEMPT AUTO THEFT PC 288 s L&L ACTS W/ CHILD UNDER 14/ ORAL COP., PC 261 - ASSAULTTO COMMIT RAPE PC 288- L&L ACTS W/CHILD UNDER 10/ORAL COP.PC 288 - L&L ACTS W/CHILD UNDER 10/ORAL COP. PC 664/187(A)ATT. MURDER/PC 664/207{A)ATTEMPT/KIDNAPP/PC245(A)(1) ASSLT W/DEAOLY WEA^ PC 288 - L&L ACTS W/ CHILD UNDER 14, US 1325 - VIOL OF IMMIGRATION PC 288 - L&L ACTS W/CHILD UNDER 14,PC 261.5 - SEXUAL INTERCOURSE W/ MINOR
[PC187- MUROERPC 187- MURDERPC187- MURDERPC187 - MURDERPC 187 - MURDERPC187- MURDER

ORDER FOR PRE-TRIAL?
BAIL?

YES

NO

YES

NO

YES

NO

YES

NO

YES

NO

YES

YES

NO

NO

YES

YES

YES

YES

NO

NO

YES

NO

YES

YES

YES

YES

YES

YES

YES

YES

YES

YES

YES

YES

YES

YES

YES

NO

YES

NO

YES

YES

YES

NO

YES

YES

YES

YES

YES

YES

YES

YES

YES

NO

YES

YES

YES

YES

YES

NO

NO

NO

YES

YES

YES

YES

NO

NO

YES

YES

YES

YES

-• ygj YES

PROBATION/
PAROLE NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO

QUALIFY FOR ZERO BAIL?
NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO
NO'
NO
no"
NO NO NO NO NO NO

EXHIBIT A Page 14

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 16 of 28 Page ID #:2067

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 110 of 154

PC 261 s ASSAULTTO COMMIT RAPE.PC 286 - SODOMY,PC 289 s SEX PEN.BY FORCE/FEAR

YES

YES

NO

NO

PC 187- MUROERPC 187- MUROERPC 187- MURDERPC 187- MURDERPC 187- MURDERPC 187- MURDER

YES

NO

NO

NO

PC 288- L6L AaS W/CHILD UNDER 14/ ORAL COP.OF CHILD UNDER 10

YES

YES

NO

NO

PC 288 - L&L AaS W/CHILD UNDER 10/ORAL COP.PC 288- L8iL AQS W/CHILD UNDER 10/ORAL COP.

YES

YES

NO

NO

PC 286(B)(2)SODOMY:PERSON UNDER 16/PC 288A(B)(2)ORAL COP:PERSON UNDER

YES

YES

NO

NO

PC 187- MURDERPC 187 - MUROERPC 187- MURDERPC 187- MURDERPC 187- MURDERPC 187- MURDER

YES

YES

NO

NO

PC 187(A} MURDER,VC 23153(A)(B) DUI:.08 ALCHL W/GBl

YES

YES

NO

NO

PC 209(B)(1)KIDNAP:ROBBERY/OTHER,PC 261(A)(2)ASSLTrCOMMIT RAPE,PC 288A(C)(2)ORAL COP

YES

NO

NO

NO

PC 211 ROBBERY/PC 245(A)(4) ASSAULT W/FORCE G8IPC 211 ROBBERY/PC 245(A)(4) ASSAULT W/FORCE GBl

YES

NO

NO

NO

VC 2800.2 EVADING PO,PC496D(A)REC STOLEN VEH,VC 10851(A) VEH THEFT

YES

YES

NO

NO

PC 211 ROBBERY,PC 243(C)(2) BATT ON PO,PC 245(A)(1) ASSET W/ DEADLY WEAPON

YES

NO

NO

NO

PC 187- MURDER,PC 191.5 - VEHICULAR MANSLAUGHTER,VC 23153 - DUI CAUSING GBl

YES

NO

NO

NO

PC 220(B) ASSLT/COMMIT RAPE/PC 459 BURGLARY / PC 460(A) BURGLARYiFIRST DEGREE

YES

YES

NO

NO

PC 664/187 - ATTEMPT MURDER,PC 215- CARJACKIN6PC 664/187 - ATTEMPT MURDER,PC 215-CARJACKING

YES

NO

NO

NO

PC 451(C) ARSON: FOREST LAND/PC 4S1(B) ARSON:INHABITED STRUaURE

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER lOPC 288 - L&L ACTS W/ CHILD UNDER 10

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 288(A)LSL W/CHILD /1203,2/US1325-VIOL OF IMMIGRATION

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 288- L&L ACTS W/CHILD UNDER 10/ORAL COP.PC 288- L&L ACTS W/CHILD UNDER 10/ORAL COP.

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 10/CONTINUAL SEXUAL ABUSE OF CHILD, PC 207•KIDNAP TO COMMIT LfiL

YES

YES

NO

NO

PC 187- MURDERPC 187•MURDERPC 187 - MURDERPC 187- MURDERPC 187- MURDERPC 187 - MURDER

YES

NO

NO

NO

PC 187- MURDER,PC 211 - ROBBERY,PC 186.22•CRIMINAL STREET GANG

YES

YES

NO

NO

PC 187- MURDER,PC 211 - ROBBERY,PC 186.22 - CRIMINAL STREET GANG

YES

NO

NO

NO

PC 664/187(A)ATTMPT MURDER,PC 245(A)(2) ASSLT W/ FIREARM ON PERS,PC 246,3(A)DISCHARGE FIREARM

YES

YES

NO

NO

PC 206TORTURE,PC 273D{A)INFLICT INJURY UPON CHILD,PC 245(A)(1)

YES

YES

NO

NO

PC 206 TORTURE,PC 273D{A} INFLICT INJURY UPON CHILD, PC 245(A)(1)

YES

YES

NO

NO

HS11378 POSSESSION FOR SALE/ PC 187(A) MURDERHS 11378 POSSESSION FOR SALE/ PC 187(A) MURDER

YES

YES

NO

NO

PC 664/187(A)ATTMPT MURDER,PC 186.22 CRIMINAL STREET GANG,PC 245(A)(4)ASSLT W/ FORCE GBl

YES

YES

NO

NO

PC 3056 VIOLATION OF PAROLE/PC451{A) ARSON CAUSING 6BI/PC597 CRUELTY TO ANIMALS

YES

YES

NO

NO

PC 459 BURGLARY/PC 460(A) BURGLARYiFIRST DEGREEPC 459 BURGLARY/PC 460(A) BURGLARY;FIRST DEGREE YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, US 1325 - VIOLATION OF IMMIGRATION

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC459 BURGLARY/ PC 460(8) BURGLARYiSECOND DEGREE

NO

NO

NO

NO

PC 273.5 INFLICT INJURY UPON SPOUSE/PC 459 BURGLARY/ PC 245(A)(1)ASSAULT W/DEADLY WEAPON

YES

YES

NO

NO

PC 187(A) MURDER/PC664/187 ATTEMPTED MURDER PC 187(A)MURDER/PC664/187 ATTEMPTED MURDER

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, US 1325 - VIOLATION OF IMMIGRATION PC 203- MAYHEM,PC 206-TORTURE,PC 245 s ASSAULT W/DEADLY WEAPON,PC451 - ARSON

YES

YES

NO

NO

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

EXHIBIT A Page 15

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 17 of 28 Page ID #:2068

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 111 of 154

[PC664/187•ATTEMPT MURDER,PC203- AGGRAVATED MAYHEM

YES

YES

NO

NO

PC 187(A) MURDER PC 187(A) MURDER PC 187(A) MURDER PC 187(A) MURDER PC 187(A) MURDER

YES

NO

NO

NO

PC 288 - L&L ACTS \N/CHILD UNDER 14, PC 269•ORAL COP.BY FORCE OR FEAR

YES

YES

NO

NO

HS 11351 POS/PUR F/SALE NARC/ PC 182(A)(1) CONSPIRACYiCOMMIT CRIME PC 288 s L&L ACTS W/CHILD UNDER 14, PC286 - SODOMY

NO

NO

NO

NO

YES

YES

NO

NO

PC 451(D)ARSON:PROPERTY,PC 594(A) VANDALISM S50000 OR MORE

YES

YES

NO

NO

PC 187 - MURDERPC187 - MUROERPC 187 - MURDERPC187 - MURDERPC 187 - MURDERPC 187 - MURDER

YES

YES

NO

NO

PC 288- LSL AaS W/CHILD UNDER 14/CONTINUAL SEXUAL ABUSE OF CHILD,PC 667,61 - TIE/BIND DURING CRKv NO

NO

NO

NO

HS 11352 TRANSPORT/SELL NARC,HS 11352 TRANSP/SELL NARC

NO

NO

NO

NO

HS 11378 POSSESSION FOR SALE,HS 11379(A)TRANSP/SELL CNTRL SUB

YES

NO

NO

NO

PC 236 - HUMAN TRAFFICKING,PC 266 - PIMPINGPC 236 - HUMAN TRAFFICKING,PC 266 - PIMPING

YES

NO

NO

NO

PC 187(A) MURDER/ VC 14601.1(A) LIC. SUSPEND/REVOKED

YES

YES

NO

NO

PC 654/187 - ATTEMPT MURDER,PC 3056 - VIOL OF PAROLE

YES

YES

NO

NO

PC 245- ASSAULT W/ DEADLY WEAPON,PC 273.5 - DV,PC 290.013 - FAIL TO REGISTER/SEX OFFENDER

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, US 1325 - VIOL OF IMMIGRATION

YES

YES

NO

NO

PC 187(A) MURDER,PC451(B)ARSON INHABITED STRUQURE

YES

YES

NO

NO

PC 187 s MURDER,PC 211 - ROBBERY PC 187• MURDER,PC 211 - ROBBERY

YES

NO

NO

NO

PC 288(A)L&L W/CHILD UNDER UPC 288(A)L&L W/ CHILD UNDER 14PC 288(A) L&L W/CHILD UNDER 14

YES

YES

NO

NO

PC 209(B)(1)KIDNAP;R068ERY/0THER/ PC 215(A)CARJACKING PC 211 ROBBERY

YES

YES

NO

NO

US18USC USMARSHALUS18USC US MARSHALUS 18USC US MARSHALUS 18USC US MARSHAL

NO

NO

NO

NO

PC 459 BURGLARY/PC 646.9(A)STALKING/ PC 422(A)THRTN CRIME W/INTENT

YES

NO

NO

NO

VC 23153(A)DUI;ALC/ORUGCAUSINGGBI/VC23153(B) DUI:.08ALCOHOLW/GBI

YES

YES

NO

NO

PC288•L&L ACTS W/CHILD UNDER 14, PC 209- KIDNAP(ROBBERY)

YES

YES

NO

NO

PC 664/187(A) ATTEMPTED MURDER/ PC 211 ROBBERY/PC 245(A)(1) ASSAULT W/DEADLY WEAPON

YES

YES

NO

NO

PC 29800 - EX-FELON W/ FIREARM,PC 186.22 - GANG PUNISHMENT

YES

YES

NO

NO

PC 187 - MURDER/PC COURTORDER PC 187 - MURDER/ PC COURTORDER PC 187- MURDER/ PC COURTORDER

YES

YES

NO

NO

PC245(A)(2) ASSLTW/FIREARM ON PERS/ PC 245(6) ASSLTW/SEMIAUTO RIFLE

YES

YES

NO

NO

PC 664/187• ATTEMPT MURDER,PC 245•ASSAULT W/SEMI AUTO RIFLE

YES

YES

NO

NO

PC 245 - ASSAULT W/DEADLY WEAPON,PC 29800- EX FELON W/ FIREARM PC 288 - L&L ACTS W/ CHILD UNDER 14, PC 288.5 s CONT SEX ABUSE OF CHILD, US 1325 s VIOL OF IMM.

YES

YES

NO

YES

YES

NO

NO NO

PC 288(G)ORAL COP DISABLED VICT, PC 288(A)L&L CHILD UNDER 14, PC 289(A)(1)(C)SEX PEN MINOR

YES

YES

NO

NO

PC455 AID IN ARSON,PC 453(A)POSS ARSON MATERIALS,PC 451(D)ARSON PROPERTY

YES

YES

NO

NO

PC 187- MURDER,PC 273AB(4)- ASSAULT W/G8I TO CHILD

YES

YES

NO

NO

PC459 BURGLARY/496(A)/11375{B)(2)/460(A)/11377/148(A)(1)

YES

YES

NO

NO

PC 209(B)KIDNAP TO COMMIT ROBBERYPC 209(B)KIDNAP TO COMMIT ROBBERY

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER UPC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 666.5 AUTO THEFT WITH PRIOR,PC 29800(A)(1)EX-FELON W/FIREARM,VC 10851(A)VEH THEFT

NO

NO

NO

NO

HS 11378 POSSESSION FOR SALE/ HS 11379(A)TRANSP/SELL CNTL SUB

NO

NO

NO

NO

PC 187- MURDER,PC 186.22- CRIMINAL STREET GANGPC 187- MURDER,PC 186.22- CRIMINAL STREET GANG

NO

NO

NO

NO

EXHIBIT A Page 16

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 18 of 28 Page ID #:2069

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 112 of 154

PC664/187(A1 ATTEMPTED MURDER/PC 245(A)(1) ASSAULT W/DEAOLY WEAPON

YES

YES

NO

NO

PC487(A)GRAND THEFT,PC424(A)(1)PUB OFCR APPRP PUB FUNDS,PC 12022.6(A)(4)PROP DMGE OVER 2.5 MIL YES

NO

NO

NO

PC COURTORDER/ PC 597.3(A) VANDALIZE PLACE OF WORSHIP

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER lOPC 288 - L8iL ACTS W/ CHILD UNDER 10

YES

YES

NO

NO

PC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDER

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER UPC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 664/187(A) ATTEMPTED MURDER / CORPORAL INJURY OF SPOUSE

YES

NO

NO

NO

PC 288(A) L6L W/CHILD UNDER 14/PC 269(A)SEX ASSAULT/CHILD

YES

YES

NO

NO

PC 2661(A)(1)PANDERING/PUNISHMENT/PC 664/236.1(A) ATTEMPT HUMAN TRAFFICK

YES

NO

NO

NO

PC 664/187(A)ATTEMPTED MURDER/PC451(A)ARSON CAUSING GBI

YES

NO

NO

NO

PC 187(A) MURDER/ PC 288(A) L&L W/CHILD UNDER 14PC 187(A)MURDER/PC 288(A) L&L W/CHILD UNDER 14

YES

NO

NO

NO

PC 664/187 - ATTEMPT MURDER,PC 245(B)- ASSAULT W/SEMI AUTO RIFLE

YES

YES

NO

NO

PC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDERPC 187 - MURDER

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, PC 269 - SODOMY BY FORCE/FEAR

YES

YES

NO

NO

PC 191.5(A)GR VEH MANSL WHILE INT/ PC 187(A)MURDER

YES

YES

NO

NO

PC 211 - ROBBERY,PC 245•ASSAULT W/DEADLY WEAPON

YES

YES

NO

NO

HS 11378 POSSESSION FOR SALE/HS 11370.1(A) POSSESSION W/FIREARM

YES

YES

YES

NO

PC 211 - ROBBERY,PC459- BURGLARY,PC 29800 - EX FELON W/FIREARM

YES

YES

NO

NO

HS 11377(A) P05S CNTRLD SUB-/11378/11379(A)/11370.1(A)

NO

NO

NO

NO

PC 451 - ARSONPC 451 - ARSONPC 451 - ARSONPC 451 - ARSONPC 451 - ARSONPC 451 - ARSONPC 451 - ARSON

NO

NO

NO

NO

PC 664/187- ATTEMPT MURDER,PC 186.22 - CRIMINAL STREET GANG

YES

YES

NO

NO

PC 314.1 INDECENT EXPOSURE,PC 3056 VIOLATION OR PAROLE

YES

NO

NO

NO

PC 288(A)L&L W/CHILD UNDER 14,PC 287 SODOMY,PC 261(A)(2)ASSLT: COMMIT RAPE

YES

YES

NO

NO

PC 236 - FALSE IMPRISONMENT,PC 245 - ASSAULT W/DEADLY WEAPON,PC 273.5 - DV

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, US 1325 - VIOLATION OF IMMIGRATION

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, US 18USC US MARSHAL

YES

YES

NO

NO

PC 191.5(B) GROSS VEHICLE MANSLAUG/ VC 20C01(A) HIT AND RUN;DEATH/INJURY

YES

YES

NO

NO

PC 451(B) ARSON:INHABIT£D STRUCT/ PC 243(C)(2) BATTERY ON PO/ PC 417.8 WEAPON OFFENSE

YES

YES

NO

NO

PC 288(A)L&L W/CHILD UNDER 14,PC 288.7(C)(1)LEWD AND LASCIVIOUS ACTS

YES

YES

NO

NO

PC 314 - INDECENT EXPOSUREPC 314 - INDECENT EXPOSUREPC 314 - INDECENT EXPOSURE

YES

YES

NO

NO

PC 241.1 ASSLT ON CUSTODIAL OFFICeR/69/243{B) BATT PO/EMERG PRSNL

YES

YES

NO

NO

PC COURTORDER/ Wl 6600 SEX PREDATOR PC COURTORDER/ Wl 6600 SEX PREDATOR

NO

NO

NO

NO

PC 288.4 - ARRANGE MEETING W/ MINOR,PC 311.11 - OBSCENE MATERIAL OF MINOR UNDER 14

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER lO/ORAL COP., PC 311.11 - OBSCENE MATERIAL OF MINOR UNDER 14

YES

YES

NO

NO

PC 243(B)BATT PO/EMERG PRSNL, VC 23153(A)(B)DUI 0.08%. PC 148(A)(1)RESISTING

YES

YES

NO

NO

PC 288- L&L ACTS W/CHILD UNDER UPC 288- L&L ACTS W/CHILD UNDER 14

YES

YES

NO

NO

HS 11377(A) POSS CONTROLLED SUBSTANCE/ PC 459 BURGLARY/PC 472 FORGE OFFICIAL SEAL

YES

NO

NO

NO

PC 273.5(A)CORPORAL INJURY OF SPOUSE/PC 136.1(C)(1)INTIMIDATE WIT/VICT

YES

NO

NO

NO

PC 288(A)L&L W/CHILD UNDER 14PC 288(A) L&L W/CHILD UNDER UPC 288(A) L&L W/ CHILD UNDER 14

YES

YES

NO

NO

EXHIBIT A Page 17

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 19 of 28 Page ID #:2070

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1 PC 269 - AGGRVTO SEXUAL ASSAULT/ORAL COP BY FORCE/PEAR

YES

YES

NO

NO

PC 451(C) ARSON:FOREST LAND/PC 451(D) ARSONlPROPERTV

YES

NO

NO

NO

PC 288- L&L AaS W/CHILD UNDER 14,PC 311.11 - OBSCENE MATTER OF MINOR UNDER 14

YES

YES

NO

NO

US iSUSC FEDMUS 18USC FEDMUS 18USC FEOMUS 18USC FEDMU5 18USC FEDMU5 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

PC 288.7(6} ORAL COP CHILD UNDER 10/ PC288 CRIMES AGAINST CHILDREN/PC 288(A)

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEOMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

HS 11351 POS/PUR F/SALE NARC/HS 11351.5 POSS/PUR COKE BASE-SALE

NO

NO

NO

NO

MS 11352(A)TRANSP/SELL NARC/ HS11370.6(A)POSS$ FROM SALE CNTRL SUB.

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14/ CONTINUAL SEXUAL ABUSE OF CHILD

YES

YES

NO

NO

PC 1S7(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDER

YES

NO

NO

NO

PC 245(C) ADW NO FIREARMrGBI, PC 273.5 CORP INJURY OF SPOUSE, PC 69 OBSTRUa/RESIST EXEC OFCR

YES

YES

NO

NO

PC459 BURGLARY, PC 664/245(A)(l} ATTMPT ASSLT W/ DEADLY WPN

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L AaS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 1203.2 REVOKE PROBATION,PC 666.5 AUTO THEFT W/ PRIOR,PC496D(A)REC STOLEN VEH

NO

NO

NO

NO

PC 211 - ROBBERY,PC 245 - ASSAULT W/ FIREARM,PC 148 - RESISTING ARREST

YES

YES

NO

NO

HS 11377(A)POSSESSION OF A CNTRLD SUBSTANCE/ HS11378 POSSESSION FOR SALE

NO

NO

NO

NO

HS 11378 POSSESSION FOR SALE, HS 11364(A) POSS OF PARA/PIPE

NO

NO

NO

NO

PC 368 - INFLICT INJURY ON ELDERLY/PROPERTY THFT OF ELDERLY, PC 242 - BATTERY

YES

NO

NO

NO

PC 288(A) L&L W/CHILD UNDER 14PC 288(A) L&L W/CHILD UNDER 14PC 288(A) L&L W/CHILD UNDER 14

YES

YES

NO

NO

HS 11378 POSSESSION FOR SALE/ HS 11379(A)TRANSP/SELL CNTL SUB

YES

YES

NO

NO

PC 211 ROBBERY/ PC 529(A)(3) FALSELY PERSONATES/ PC212.S/HS11378 POSS. FOR SALE

YES

YES

NO

NO

VC 23153(A) DUIiALC/DRUG CAUSING GBI/VC23153(B)OUI:.08 ALCOHOL W/GBI

YES

YES

NO

NO

PC 207(A) KIDNAPPING/ PC 261(A)(2) ASSAULT:COMMIT RAPE/PC 288(C)(1) LEWD AND LASCIVIOUS AO-

YES

YES

NO

NO

PC 288 - L&L ACTS W/CHILD UNDER 14PC 288•L&L AOS W/CHILD UNDER 14

YES

YES

NO

NO

HS 11377(A)POSSESSION OF A CNTRLD SUBSTANCE/PC487(A)GRAND THEFT/VC 10851(A)VEHICLE THEFT

NO

NO

NO

NO

PC 451(C) ARSON:FOREST LAND/PC 452(C) CAUSE FIRE OF STRUC/FO

YES

NO

NO

NO

PC 187(A) MURDER/ US 18/1073 UNLAWFUL FLIGHTPC 187(A) MURDER/ US 18/1073 UNLAWFUL FLIGHT

YES

NO

NO

NO

PC485 APPROPR LOST PROPPC 485 APPROPR LOST PROPPC 485 APPROPR LOST PROPPC485 APPROPR LOST PROP NO

NO

NO

NO

PC 220(B) ASSLT/COMMIT RAPE/ PC 459 BURGLARY/PC 209(B)(1) KIDNAP;R0B6ERY/0THER

YES

YES

NO

NO

HS 11351 POS/PUR F/SALE NARC/HS11352(A)TRANSP/SELL CNTLSUB

NO

NO

NO

NO

PC 311.11 - OBSCENE MATERIAL OF MINOR UNDER 14, PC 422 s CRIMINAL THREATS

NO

NO

NO

NO

PC 211 ROBBERY,PC 212.5 ROBBERY;SECOND DEGREEPC 211 ROBBERY,PC 212.5 ROBBERY:SECOND DEGREE

YES

NO

NO

NO

PC 424(A)(1)PUB OFCR APPRP PUB FUNDSPC 424(A)(1)PUB OFCR APPRP PUB FUNDS

NO

NO

NO

NO

HS 11378 POSSESSION FOR SALE/ HS 11351/ PC 4573.6 POSSESSION OF DRUGS IN JAIL

NO

NO

NO

NO

PC 211 - ROBBERY,PC 368 s INFLICT INJURY ON ELDERLYPC 211 - ROBBERY,PC 368 - INFLICT INJURY ON ELDERLY

YES

YES

NO

NO

PC69 OBSTRUCT RESIST/PC245(C)ADW:6BI/HS 11351 POSS/PUR F/SALE NARC

YES

YES

NO

NO

PC 245(A)(4) ASSAULT W/FORCEGBI/664/187(A) ATTEMPTED MURDER

YES

YES

NO

NO

VC 10851(A) VEHICLE THEFT,PC 496D(A)REC STOLEN VEHICLE

NO

NO

NO

NO

EXHIBIT A Page 18

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[PC4573 BRING CNTL SUB/ETC JAIL/PC 32310 LARGE CAP MAGAZINE

YES

YES

NO

NO

PC 273.5 - DV, US 18USC FEDMPC 273.5• DV,US 18USC FEDMPC 273.5•DV,US 18USC FEDM

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 211 - ROBBERY,PC 245- ASSAULT W/ GBI,PC 215- CARJACKING

YES

YES

NO

NO

PC 209- KINAP FOR ROBBERY/RANSOM,PC 664/518• ATTEMPT E>CTORTION

YES

YES

NO

NO

PC 209- KINAP FOR ROBBERY/RANSOM,PC 664/518 - ATTEMPT EXTORTION

YES

YES

NO

NO

PC 530.5(A) USE OTHER'S ID 4 GAIN/PC 30605(A)POSS OF ASSLT WEAPON

NO

NO

NO

NO

HS 11378/11352(A)POSSESSION FOR SALE /SALES NARC,HS 11378/11352(A)POSSESSION FOR SALE /SALES NARC. NO

NO

NO

NO

PC 459 BURGLARY, PC 537(A)(1) DEFRAUD INKEEPER, PC 273.6 DOMESTIC VIOLENCE

YES

YES

NO

NO

PC459•BURGLARY,PC422- CRIMINAL THREATSPC 459- BURGLARY,PC422- CRIMINAL THREATS

NO

NO

NO

NO

HS 11378 POSSESSION FOR SALE, HS 11379(A) TRANSP/SELL CNTRL SUB

NO

NO

NO

NO

PC451(D)ARSON:PROPERTY PC 451(D)ARSON: PROPERTY PC451(D)ARSON;PROPERTY

NO

NO

NO

NO

PC 459 BURGLARY, PC 3056 PAROLE VIOL, PC 182(A)(1) CONSPIRACT

YES

NO

NO

NO

VC 23152(A)(6) DUI ALCHL 0,08%, US 1325 VIOL OF IMMIGRATION

YES

YES

NO

NO

HS 11351 POSS/SALE NARCOTICS/ HS 11378 POSS, FOR SALE/ PC 22210 LEADED CANE/BILLY CLUB

NO

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14, PC 269 - ORAL COP.BY FORCE OR FEAR,PC 1551- FUG1 OF UTAH

YES

YES

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

PC 261 - ASSAULT TO COMMIT RAPE / RAPE UNCONCIOUS VIC,, PC 286 - SODOMY OF UNCONCIOUS VIC.

YES

YES

NO

NO

PC 451- ARSON,PC 1203,2 - REVOKE PROBATIONPC 451 - ARSON,PC 1203,2- REVOKE PROBATION

YES

YES

NO

NO

PC 288(A)L&L W/CHILD UNDER 14/ PC243.4(A)SEXUAL BATTERY/PC288.7(B)ORAL COP CHILD UNDER 10

YES

YES

NO

NO

PC 187(A) MURDER/PC 211 ROBBERYPC 187(A) MURDER/PC 211 ROBBERY

YES

NO

NO

NO

PC 21810 METAL KNUCKLES, HS 11378 POSS FOR SALEPC 21810 METAL KNUCKLES,HS 11378 POSS FOR SALE

NO

NO

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

VC 10851 - UNLAWFUL TAKING OF VEHICLE, PC 186.22 - CRIMINAL STREET GANG

YES

YES

NO

NO

PC 245(A)(1)ASSAULT W/DEADLY WEAPON/PC 243(D)BATT W/SERIOUS BODILY

YES

YES

NO

NO

PC 286/287 - ORAL COP/SODOMY OF MINOR UNDER 16PC 286/287 - ORAL COP/SODOMY OF MINOR UNDER 16

YES

NO

YES

NO

PC 209(B)(1) KIDNAP:R0B6ERY/0THER/ PC 182(A)(1) CONSPIRACY:COMMIT CRIME/PC 211 ROBBERY

YES

YES

NO

NO

PC 422(A) THRTN CRIME W/INTENT/PC 136.1(A)(1) PREVENT/DISSUADE WIT/V

NO

NO

NO

NO

PC 311.11(A) OBSCN MTR:MNR U/14 SEX/ PC 647(J)(3)(A) USE CAMERA/EQUIP TO

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 288 - L&L ACTS W/CHILD UNDER 10/ ORAL COP./ CONTINUAL SEXUAL ABUSE OF CHILD

YES

YES

NO

NO

PC451(6)ARSON INHABITED STRUCTURE,PC 457,1 REGISTER ARSON OFFENDER

YES

YES

NO

NO

PC 211 - ROBBERY, PC 215 - CARJACKING, PC 207 - KIDNAPPING

YES

YES

NO

NO

PC 187(A) MURDER / HS11378 POSSESSION FOR SALE/HS11379(A)TRANSPORT CNTL SUB.

YES

YES

NO

NO

PC 288 - L&L ACTS W/CHILD UNDER 10,PC 289-SEXUAL PEN.W/ FOREIGN OBJECT

YES

YES

NO

NO

PC 245 - ASSAULT W/ DEADLY WEAPON,PC 215•CARJACKING

YES

YES

NO

NO

PC 29800(A)(1) EX-FELON W/ A FIREARM/HS 11370.1(A) POSSESSION W/FIREARM

NO

NO

NO

NO

PC 664/288 - ATTEMPT L&L ACTS W/ CHILD UNDER 14, PC 314•INDECENT EXPOSURE

NO

NO

NO

NO

EXHIBIT A Page 19

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PC 29800(A)(1) EX-FELON W/ FIREARM, HS 11378 P0S5 FOR SALE

YES

YES

NO

NO

HS 11364 - POSS. CONTROLLED SUSBTANCE, PC 646 - STALKING

YES

NO

NO

NO

HS 11379- TRANS/SELL CONTROLLED SUBSTANCE,HS 11378 - POSS FOR SALE,PC 34S5 - FAIL TO REPORT

NO

NO

NO

NO

VC 23152(A) OUI ALCOHOL/DRUGSVC 23152(A)OUI ALCOHOL/DRUGSVC 23152(A) DUl ALCOHOL/DRUGS

YES

YES

NO

NO

PC496 - RECEIVING STOLEN VEH.,PC 148 - RESISTING ARREST

YES

NO

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER 14PC 288 - L8.L ACTS W/ CHILD UNDER 14

YES

YES

NO

NO

PC 487(A) GRNDTHFT:PROP/ETC/PC 186.10(A) MONEY LAUNDERING

NO

NO

NO

NO

PC 451(D)ARSON;PROPERTY /PC 455 AID IN ARSON PC 451(D)ARSON:PROPERTY /PC 455 AID IN ARSON

NO

NO

NO

NO

VC 10851 - VEH.THFT,PC 666.5 - AUTO THFT VY/ PRIOR,PC 1170 - SUPERVISED RELEASE RTRN

NO

NO

NO

NO

PC - 245 ASSAULT VY/ DEADLY WEAPON,PC 3056• VIOL. OF PAROLE

YES

YES

NO

NO

PC 290-018 FAIL TO REG AS SEX OFFENDER, PC 3056 VIOL OF PAROLE

YES

NO

NO

NO

PC 245(A)(1)ASSAULT W/OEADLY WEAPON/ PC 422 THREATTO TERRORIZE

YES

YES

NO

NO

PC 1203.2 REVOKE PROBATION,PC4573.6 POSSES DRUGS IN PRISON

NO

NO

NO

NO

PC 21310 DIRK/DAGGER/ PC 3056 PAROLE VIOUTION PC 21310 DIRK/DAGGER/ PC 3056 PAROLE VIOLATION

NO

NO

NO

NO

PC 664/187(A)ATTEMPTED MURDER/PC 245(A)(1) ASSAULT W/DEADLY WEAPON

NO

NO

NO

NO

PC 245 {A){2) ASSAULT W/ FIREARM ON A PERSON/ PC30305(A)(1}/PC206 TORTURE/PC205 A6G. MAYHEM

YES

YES

NO

NO

PC 460- BURGURY(1ST DEGREE), PC 666.5 - AUTO THFT W/PRIOR

YES

YES

NO

NO

PC 187(A) MURDER/VC 20001(A) HIT AND RUN;DEATH/!NJURY

YES

YES

NO

NO

PC 664/187 - ATTEMPT MURDERPC 664/187 - ATTEMPT MURDERPC 664/187 - ATTEMPT MURDER

YES

YES

NO

NO

PC COURTORDER / PC 422(A) HS 11350(A)POSSESSESION OF NARCOTICS

YES

NO

NO

NO

PC 236.1 - HUMAN TRAFFICK.,PC 266 - PIMPING VIC UNDER 16

YES

NO

NO

NO

PC422 THREAT TO TERRORIZE/PC 594(A)(2) VANDALISM

YES

NO

NO

NO

PC 664/187 - ATTEMPT MURDER,PC 186.22 - CRIMINAL STREET GANG

YES

NO

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

HS 11351.5 POSS/PUR COKE BASE-SAL/ HS 11378 POSSESSION FOR SALE

YES

YES

NO

NO

PC 288• L8iL ACTS W/CHILD UNDER 14PC 288 - L8iL ACTS W/CHILD UNDER 14

YES

YES

NO

NO

PC 1203.2 REVOKE PROBATION,PC 459 BURGLARY,PC 487(A)GRAND THEFT

NO

NO

NO

NO

PC 273.5•DV,PC 245 - ASSAULT W/DEADLY WEAPON,PC 236 - FALSE IMPRISONMENT

YES

YES

NO

NO

VC 23153 - DUl CAUSING GBI, PC 1203.2 - REVOKE PROBATION

YES

YES

NO

NO

PC 273.5 - DV, PC 243.4 - TOUCHING PERSON INTIMATE PART

NO

YES

NO

NO

PC 1203.2 REARREST/REVOKE PROBAT/HS 11351 POS/PUR F/SALE NARC

NO

NO

NO

NO

PC 69 OBSTRUCT/RESIST,PC 148(A)(1) RESISTING ARRESTPC 69 OBSTRUa/RESIST,PC 148(A)(1) RESISTING ARREST YES

YES

NO

NO

PC 245•ASSAULT W/DEADLY WEAPON,PC 211 - ROBBERY

YES

YES

NO

NO

PC 666.5 AUTO THER W/ PRIOR,PC 496D(A) REC STOLEN VEHICLE

NO

NO

NO

NO

PC 288 - L&L ACTS W/CHILD UNDER 10/ORAL COP.PC 288- L&L AaS W/CHIIX) UNDER 10/ ORAL COP.

YES

YES

NO

NO

PC 664/211 ATTEMPTED ROBBERY/ PC 368(B)(2) GREAT BODILY INJURY/ PC 211 ROBBERY

YES

YES

NO

NO

VC 23152(A)DUl ALCOHOL/DRUGS/ VC 23152(B)VC 23152(A)OUI ALCOHOL/DRUGS/ VC 23152(B)

YES

YES

NO

NO

PC 459 BURGLARY/PC 460(A) BURGURYiFIRST DEGREEPC 459 BURGLARY/PC 460(A) BURGLARYiFIRST DEGREE

YES

NO

NO

NO

HS11379(A)TRANSP/SELL CONTROLLED SU8STANCEHS11379(A)TRANSP/SELL CONTROLLED SUBSTANCE

NO

NO

NO

NO

EXHIBIT A Page 20

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[us 18USCfEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEOM NO

NO

NO

NO

PC 187• MURDERPC 187• MURDERPC 187- MUROERPC 187- MURDERPC 187- MURDERPC187- MURDER

YES

NO

NO

NO

VC 23152(A) DUIALCOHOL/DRUGSVC 23152(A)DUIALCOHOL/DRUGSVC 23152(A)DUl ALCOHOL/DRUGS

YES

YES

NO

NO

HS 11378 POSSESSION FOR SALE/ HS11364(A)POSSESSION OF A CNTRLD SUB. PC 288 - L&L AQS W/ CHILD UNDER 14 AND 10, PC 286 s SODOMY

NO YES

NO YES

NO NO

NO NO

VC 23152(A)(8) DUI ALCOHOL/0.08 PERCENT OR MOREVC 23152(A)(B) DUI ALCOHOL/0.08 PERCENT OR MORE

YES

NO

NO

NO

PC 236 FALSE IMPRISONMENT/PC 4573.5 BRING ALC/DRU6S IN PRISON

YES

NO

NO

NO

PC 484(A)PETTY THEFT,VC 10851(A)VEH THEFT,PC 459 BURGLARY

YES

YES

NO

NO

PC 594(A) VANDALISM/ VC 23152(8)DUI ALCOHOL/O.Oa/VC 20002(A)(2) HIT&RUN PROP DAMAGE

YES

YES

NO

NO

PC 1203.2 REARREST/REVOKE PROBATION/PC 368(B)(1)INFLICT INJURY ON ELDERLY

NO

NO

NO

NO

PC 211 ROBBERY, PC 459 BURGLARY, VC 2800.2 EVADING

YES

YES

NO

NO

HS 11351 POSS/PUR FOR SALE NARC, HS 11377(A) POSS CNTRL SUBSTANCE

NO

NO

NO

NO

PC 290.011(A)FAILURE TO REGISTER/PC29C.018(G) FAIL TO REGISTER AS A SEX OFFENDER

YES

YES

NO

NO

PC 666.5 AUTO THEFT W/PRIOR, VC 10851(A) VEHICLE THEFT

NO

NO

NO

NO

HS 11351 - POSS. NARCOTICS FOR SALE,PC 1203.2 - REVOKE PROB.

NO

NO

NO

NO

PC3455 FAILURE TO REPORT,PC 245(A)(1)ASSLT W/DEADLY WEAPON

YES

NO

NO

NO

PC 1203.2 - REVOKE PROBATIONPC 1203.2 - REVOKE PROBATIONPC 1203.2 - REVOKE PROBATION

NO

NO

YES

NO

HS 11378 POSSESSION FOR SALE/PC 1203.2 REARREST/REVOKE PROBATION

NO

NO

NO

NO

PC 314.1 INDECENT EXPOSURE/ PC488 PETTY THEFT / PC484(A)

YES

YES

NO

NO

VC 23153(A) DUI:ALC/DRUG CAUSING GBI/ VC23153(8) DUI:.08 ALCOHOL W/GBI

YES

YES

NO

NO

PC 245(A)(4) ASSAULT W/FORCE GBI/PC 273.5(A)CORPORAL INJURY OF SPO/ PC 664/187(A)ATTEMPTED MURDEF YES

YES

NO

NO

Wl 300 VIOL JUVI COURT,PC COURT ORDERWI 300 VIOL JUVI COURT,PC COURT ORDER

YES

NO

NO

NO

PC 220(A)(1) ASLT COM MAYHM RAPE/PC 664/261(A)(2)ATTEMPT RAPE

YES

YES

NO

NO

HS 11351 - POSS.FOR SALEHS 11351 s POSS. FOR SALEHS 11351 - POSS.FOR SALEHS 11351•POSS. FOR SALE

YES

YES

NO

NO

PC 459 s BURGLARY, PC 487 - GRAND THFT, PC 594 - VANDALISM ($50,000 OR MORE)

YES

YES

NO

NO

PC 288- L8iL ACTS W/CHILD UNDER 10/ORAL COP.PC 288- L&L ACTS W/CHILD UNDER 10/ORAL COP.

YES

YES

NO

NO

PC 236.1 s HUMAN TRAFFICK.,PC 266 - PIMPING VIC UNDER 16

YES

YES

NO

NO

VC 20002- HIT AND RUN,PC 1203.2- REVOKE PROBATION

YES

NO

NO

NO

HS 11378 POSSESSION FOR SALE/ HS 11379(A)TRANSP/SELL CNTL SUB,PC 29800 EX-FELON W/FIREARM

NO

NO

NO

NO

PC 245(A)(1) ASSLT W/DEADLY WPN,PC 1203.2 REVOKE PROBATION

NO

NO

NO

NO

PC 314.1 INDECENT EXPOSURE / PC 647(A)SOLICIT LEWD ACT

YES

NO

NO

NO

PC 646.9 - STALKING,PC 273AA- CHILD ENOANGERMENT,PC 422 - CRIMINAL THREATS

NO

NO

NO

NO

PC 664/187(A)ATTEMPT MURDER,PC 186.22 CRIMINAL STREET GANG,PC 245(A)(1) ASSLT W/ DEADLY WPN

YES

YES

NO

NO

PC288- L&L ACTS W/CHILD UNDER 10,PC 261 - ASSAULT TO COMMIT RAPE

YES

YES

NO

NO

HS 11379 - TRANSPORT/SELL CONTROLLED SUBSTANCEHS 11379 - TRANSPORT/SELL CONTROLLED SUBSTANCE

NO

NO

NO

NO

HS 11378 - POSS.FOR SALE,PC 135 - DESTROY EVIDENCEHS 11378 - POSS. FOR SALE, PC 135 - DESTROY EVIDENCE YES

YES

NO

NO

PC 187• MURDERPC 187- MURDERPC 187 - MURDERPC 187- MURDERPC 187 - MURDERPC 187 - MURDER

YES

NO

NO

NO

VC 23152(A)(B)DUI ALCOHOL/0.08 PERCENT OR MOREVC 23i52(A)(B) DUI ALCOHOL/0.08 PERCENT OR MORE

YES

NO

NO

NO

PC 187 - MURDER,PC 186.22 - CRIMINAL STREET GANGPC 187 - MURDER,PC 186.22- CRIMINAL STREET GANG

NO

NO

NO

NO

EXHIBIT A Page 21

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PC 290.018 - FAIL TO REG AS SEX OFFENDER, PC 3056 - VIOL OF PAROLE

NO

NO

NO

NO

PC 288 - L&L ACTS W/CHILD UNDER 14,PC 261 - RAPE,PC 288.5 - CONT SEX ABUSE OF CHILD

YES

YES

NO

NO

PC 1203.2 - REVOKE PROBATION/PC245 ASSAULT W/DEADLY WEAPON/PC 273A(B)CRUELTY TO CHILD

NO

NO

NO

NO

PC 664/209(A)ATTEMPT KIDNAP FOR RANSOM /PC 182(A)(1)CONSPIRACY:COMMIT CRIME/PC 209(A)

YES

YES

NO

NO

HS11378 - POSS FOR SALE,PC 1203.2 REVOKE PROBATION

YES

YES

NO

NO

PC 664/187 - ATTEMPT MURDER,PC 211 - ROBBERYPC 664/187- ATTEMPT MURDER,PC 211 - ROBBERY

YES

YES

NO

NO

PC 459 BURGURY,PC 3455 FAILURE TO REPORTPC459 BURGURY,PC 3455 FAILURE TO REPORT

NO

NO

NO

NO

PC 647(H) LOITER TO COMMIT CRIME/ HS11379(A)TRANSPORT FOR SALES/ PC273.6(A)DOMESTIC VIOLENCE

YES

NO

NO

NO

HS 11378 - POSS. FOR SALE, PC 1203.2 - REVOKE PROBATION

NO

NO

NO

NO

PC 1301 BAIL FAIL DELIVER DEF / PC 530.5(A) USE OTHER'S ID 4 GAIN

YES

NO

NO

NO

PC 262(A) RAPE SPOUSE BY FORCE/ PC 273.5 INFLICT INJURY UPON 5POUSE/PC207(A) KIDNAPPING

YES

YES

NO

NO

HS 11352 TRANSPORT/SELL NARCOTICS/PC 273A(A)CHILD ENDANGERMENT

YES

YES

NO

NO

PC 211 - ROBBERYPC 211 - ROBBERYPC 211 - ROBBERYPC 211 - ROBBERYPC 211 - ROBBERYPC 211 - ROBBERY

YES

YES

NO

NO

PC 666.5 - AUTO THFT W/PRIOR,PC 530.5 - USE OTHERS ID 4 GAIN

NO

NO

NO

NO

PC 3455 FAILURE TO REPORT PC 3455 FAILURETO REPORT PC 3455 FAILURE TO REPORT

NO

NO

NO

NO

PC 3056 VIOLATION OF PAROLE/PC 3000.08 PAROLE VIOLATION

YES

NO

NO

NO

PC COURT ORDER,PC 187(A) MURDER,PCTRANSORDER OUTSIDE AGENCY

YES

NO

NO

NO

PC 245(A)(1) ASSET W/DEADLY WPN,PC 422(A)THRTN CRIME W/INTENT,PC 236 FALSE IMPRSNMNT

NO

NO

NO

NO

PC 245(A)(1) ASSAULT W/DEADLY VYEAPON PC 245(A)(1) ASSAULT W/DEAOLY WEAPON

NO

NO

NO

NO

PC451(C)ARSON;FOREST LANDPC 451(C)ARSON: FOREST LANDPC 451(C)ARSON;FOREST LAND

YES

NO

NO

NO

PC451.5(A)AGGRAVATED ARSON,PC 597(8)CRUELTY TO ANIMALS

YES

YES

NO

NO

PC 3056 - PAROLE VIOLATION,PC 290.15 - FAIL TO REGISTER AS SEX OFFENDER

NO

NO

NO

NO

PC 666.5 - AUTO THFT W/ PRIOR, VC 10851 - VEH THFT, VC20002(A) HIT AND RUN/PROPERTY

NO

NO

NO

NO

HS 11379 - TRANSPORT/SELL CONTROLLED SUBSTANCEHS 11379 - TRANSPORT/SELL CONTROLLED SUBSTANCE

NO

NO

NO

NO

HS 11378 POSSESSION FOR SALE, HS 11364(A) POSS OF PARA/PIPE

NO

NO

NO

NO

PC 664/187(A) ATTEMPTED MURDER,PC 245(A)(2) ASSLT W/ FIREARM,PC 368(B)(1)INFUa/INJ ON ELDERLY

YES

YES

NO

NO

VC 23152 - DUI VC 23152 - DUI VC 23152- DUI VC 23152- DUI VC 23152 - OUI VC 23152 - DUI VC 23152• DUI

YES

YES

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

US 18USC US MARSHALUS 18U5C US MARSHALUS 18USC US MARSHALUS 18USC US MARSHAL

NO

NO

NO

NO

PC 245(A)(4)ASSAULT W/FORCE GBIPC 245(A)(4)ASSAULT W/FORCE GBIPC 245(A)(4)ASSAULT W/FORCE GBI

NO

NO

NO

NO

PC 273.5 s DV,PC 422 -THREAT TO TERRORIZE,PC 148 - RESISTING ARREST

YES

YES

NO

NO

VC 23152- DUI. PC 148.9•FALSE ID TO P/OVC 23152- DUI.PC 148.9 - FALSE ID TO P/O

NO

NO

NO

NO

PC 243(D)6ATT W/SERIOUS BODILY/ PC 245(A)(4)ASSAULT W/FORCE GBI

YES

YES

NO

NO

PC 4573 - BRING CNTRL SUB INTO JAIL, HS11351 - POSS. FOR SALE

NO

NO

NO

NO

PC 211 ROBBERY/ PC 212.5(C) ROBBERY:SECOND DEGREE

YES

YES

NO

NO

US 18USC US MARSHALUS 18USC US MARSHALUS 18USC US MARSHALUS 18USC US MARSHAL

NO

NO

NO

NO

US 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

US 18USC US MARSHALUS 18USC US MARSHALUS 18USC US MARSHALUS 18USC US MARSHAL

NO

NO

NO

NO

EXHIBIT A Page 22

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IjJS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEOMUS 18USC FEDMUS iSUSC FEDM NO

NO

NO

NO

PC COURT ORDER,PC TRANS ORDER OUTSIDE A6ENCYPC COURT ORDER.PC TRANS ORDER OUTSIDE AGENCY

YES

NO

NO

NO

PC 21310 OIRK/DAGGER/HS 11377(A)POSS CONTROLLED SUBSTANCE

YES

NO

NO

NO

PC COURTORDER/PC 245(A)(1)ASSAULT W/OEADLY WEAPON

YES

NO

NO

NO

PC 29900(A)(1)FELONY POSS FIREARM PR/ PC 30305(A)(1)PROHBTD PERSON POSS AM

NO

NO

NO

NO

HS 11379(A)TRANSP/SELL CNTL SUB/ HS11378 POSSESSION FOR SALE

NO

NO

NO

NO

PC COURTORDER/PC 459 BURGLARYPC COURTORDER/PC 459 BURGLARYPC COURTORDER/PC 459 BURGURY

YES

NO

NO

NO

PC 211 ROBBERY/ PC459 BURGLARYPC 211 ROBBERY/ PC459 BURGLARYPC 211 ROBBERY/ PC 459 BURGLARY

NO

NO

NO

NO

HS 11352(A) TRANSP/SELL NARC/CNTL/ PC 1203-2 REARREST/REVOKE PR06AT

NO

NO

NO

NO

PC 266 - PIMPING/PROCURE PERSON FOR PROSTITUTION,PC 245 - ASSAULT W/ DEADLY WEAPON

YES

NO

NO

NO

PC 187(A) MURDER,PCTRANSORDER OUTSIDE AGENCY,PC 211 ROBBERY

YES

NO

NO

NO

PC 245(A)(1)ASSLT W/DEADLY WPN,PC42(A)THRTN CRIME W/INTENT TO COMMIT

YES

YES

NO

NO

PC 3455 - FAILURE TO REPORTPC 3455 - FAILURE TO REPORTPC 3455 - FAILURE TO REPORT

NO

NO

YES

NO

PC 207- KIDNAPPING,PC 215 - CARJACKING,PC 245 - ASSAULT W/ DEADLY WEAPON

YES

YES

NO

NO

PC 211 ROBBERY/ PC 459 BURGLARY/ PC 273A(B) CRUELTYTO CHILD

NO

NO

NO

NO

PC COURTORDER,PC 29800(A)(1)EX-FELON W/ FIREARMPC COURTORDER,PC 29800(A)(1)EX-FELON W/FIREARM NO

NO

NO

NO

PC496D(A) RECEIVE STOLEN VEHICLE/HS 11364(A) POSS CNTL SUB PARA/PIP

NO

NO

NO

NO

PC 1203.2 REVOKE PROBATION, PC 273.6(A) DOMESTIC VIOLENCE

NO

NO

NO

NO

HS 11351 POSS/PUR FOR SALE NARCHS 11351 POSS/PUR FOR SALE NARCHS 11351 POSS/PUR FOR SALE NARC

NO

NO

NO

NO

PC417.4 BRANDISHING F/ARM/ PC 422(A)THRTN CRIME W/INTENT/PC245 ASSAULT W/DEADLY WEAPON

NO

NO

NO

NO

PC COURT ORDER, PC 459 BURGLARY, PC 460(A) BURGLARY 1ST DEGREE

YES

NO

NO

NO

PC 211 ROBBERY,PC 245(A)(1) ASSLT W/DEADLY WPN,PC 136.1(A)(1)PREVENT/DISUADE WITNESS

YES

YES

NO

NO

PC 288,7(A)SEX W/CHILD UNDER 10/PC 288(A)L8.L W/ CHILD UNDER 14/PC289(J)SEX PENETRATION

YES

NO

NO

NO

PC 594(A)VANDALISM,PC 422(A)THRTN CRIME W/ INTENT,PC 459 BURGLARY

YES

YES

NO

NO

PC 487(A)GRND THFT PC 487(A)GRNDTHR PC 487(A)GRND THFT PC 487(A)GRNO THFT

NO

NO

NO

NO

PC 664/187- ATTEMPT MURDER,PC 148 - RESISITING ARREST

YES

YES

NO

NO

PC 187 MURDER,PC COURT ORDERPC 187 MURDER,PC COURT ORDERPC 187 MURDER,PC COURT ORDER

YES

NO

NO

NO

PC 187- MUROERPC 187 - MURDERPC 187- MURDERPC 187 - MURDERPC 187• MURDERPC187 - MURDER

YES

YES

NO

NO

VC 10851(A)VEHICLE THEFT/ 245(A)(1) ASSAULT W/OEADLY WEAPON

NO

NO

NO

NO

PC288.7(B)ORAL COP CHILD UNDER 10/ PC 288(A)L&L W/CHILD UNDER 14

YES

NO

NO

NO

PC 207 - KIDNAPPING,PC 211 - ROBBERY,PC 245•ASSAULT W/ DEADLY WEAPON

NO

NO

NO

NO

PC 21S(A)CARJACKING/ PC 211 ROBBERY PC 215(A)CARJACKING/ PC 211 ROBBERY

YES

YES

NO

NO

PC 187(A1 MURDER / PC COURTORDER PC 187(A) MURDER / PC COURTORDER

YES

NO

NO

NO

PC COURTORDERPC COURTORDERPC COURTORDERPC COURTORDERPC COURTORDERPC COURTORDER

YES

YES

NO

NO

PC 594(81(1) VANDALISM S50000 / PC 186.22(B)TERRORISM/ PC 594(A) VANDALISM

NO

NO

NO

NO

PC COURTORDER PC COURTORDER PC COURTORDER PC COURTORDER PC COURTORDER PC COURTORDER

YES

NO

NO

NO

HS 11378 POSSESSION FOR SALE. PC 1551.1 NV FUGI. PC 1203.2 REVOKE PROBATION

YES

NO

NO

NO

PC664/187(A) ATTEMPTED MURDER/ PC 186.22(B)(1) GANG/PUNISHMENT

YES

YES

NO

NO

PC 245(A)(4) ASSAULT W/FORCE GBI /PC 245(A)(1) ASSAULT W/DEADLY WEAPON

NO

NO

NO

NO

EXHIBIT A Page 23

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 25 of 28 Page ID #:2076

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 119 of 154

PC6M/187(A)ATTEMPTED MURDER/PC 211 ROBBERY/ PC245(A)(1)ASSAULT W/DEADLY WEAPON

PC459•BURGLARY,PC 530,5 - USE OTHERS ID 4 GAINPC 459- BURGLARY,PC 530.5 - USE OTHERS ID 4 GAIN
PC 148- RESISTING ARREST, VC 23152^DIJ],VC 20002 - HIT^ND RUN
PC 27i5(A) CORPORAL INJURY OF SPOUSE/PC 245(A)(4) ASSAULT W/FORCE6BI/PC 236 FALSE|MPR.
PC 288- L&L AaSW/CHILD UNDER 14,PC 290(B)- FAILTO REGISTER AS SEX OFFENDER
PC 211 ROBBERY,PC 213"l0 DIRK/DAGGER,PC 242 BATTERY

PC422(A)THRTN CRIME W/INTENT TO COM,PC 647(F) DISORDERLY CONDU^CT
PC 368 - INFLICT INJURY ON ELDERLY,PC 273AB s CRUELTY TO CHILD, PC 21310 - DIRK/DAGGER PC 1203,2 REVOKE PROBATION,594(A)VANDALISM. VC 23152(F)DUI AlCHL/DRUG COMBO

PC^88 - L&L AaS W/ CHILD UNDER 14PC 288 - L&L ACTS W/ CHILD UNDER 14

PC 29800•EX-FELON W/FIREARM,PC 33215- SHORT BARREL RIFLE

HS 11378 POSSESSION FOR SALE/ HS 11379(A)TRANSP/SELL CNTL SUB,PC 29800 EX-FELON W/FIREARM

PC 243.4 - TOUCHING PERSON INTIMATE,PC 314 - INDECENT EXPOSURE

VC 23152 - DUIVC 23152•OUIVC 23152- DUIVC 23152 - DUIVC 23152 - DUIVC 23152• DUIVC 23152 - DUI
PC^056 - PAROLE VIOLATIONPC 3056 - PAROLE VIOLATIONPC 30^56 - PAROLE VIOLATION

PC459 BURGLARY,PC 594 VANDALISM,PC 422(A)THRN CRIME W/ INTENT

PC 3056 - PAROLE VIOLATION,PC 602-TRESSPASSINGPC 3056 - PAROLE VIOLATION,PC 602-TRESSPASSING
PC290,011(Bj TRANSIENTFAILTOREG1STER/PC22210 LEADED CANE, BILLY

PC246,3(A)DISCHARGE FIREARM/ US1325/PC1203,2PC 246,3(4)DISCHARGE FIREARM/ U51325/PC1203.2
PC290,011(BjTRANSIENT FAIL TO REGiSTERPC290,011(B)TRANSIENT FAILTO REGISTER

VC 23152(A)(B)DUI ALCOHOL/0.08 PERCENT OR MORE,PC 1203,2 REVOKE PROBATION

PC 3056 - PAROLE VIOLATIONPC 3056 - PAROLE VIOLATIONPC 3056 - PAROLE VIOLATION

PC 368- INFLICT INJURY ON ELDERLY,PC422- CRIMINAL THREATS

_

PC 211 ROBBERY/ PC273(A)CHILD ENDAGERMENTPC 211 ROBBERY/ PC273(A)CHILD ENDAGERMENT
PC451(8) ARSON:INHABITEO STRUaURE PC 451(B) ARS0N:]NHA61TED STRUCT^RJ
PC 245-ASSAULT W/DEADLY WEAPON,PC 368 s INFLrcfINJURY"oN ELDERLY
PC 273.6(A)DOMESTIC VIOLENCEPC 273.6(A)DOMESTIC VIOLE^CEPC 273,6(A)DOMECTIC VIOLENCE
PC 422(A)THRTN CRIME W/INTENT/PC 245(A)(1)'ASSAULT W/DEADIY WEAPON _

PC 211 ROBBERY/ PC 212.5(C) R08BERY:SEC0ND DEGREE

PC 3455 FAILURE TO REPORTPC 3455 FAILURE TO REPORTPC 3455 FAILURE TO REPORT

HS 11351 - POSS, FOR SALE, VC 2800 - WANTON DISREGARD FOR SAFETY

PC 273,5(A) CORP INJURY OF SPOUSE, PC 1203.2 REVOKE PROBATION

PC 243(B)BATT PO/EMERG PRSNL/ET/PC 243(C)(2)BATTERY ON POLICE/PC69 OBSTRUq/RESIST EXEC

PC273,6(A) DOMESTICVIOL, PC242 ASSAULT, PC 1203,2 REVOKE PROBATION
k422(A)THRTN CRIME W/INTENT/PC 245(A)(1)ASSAULT W/DEADLY WEAPON

VIOL, OF PAROIEVIOL, OF PAROLEVIOL, OF PAROLEVIOL. OF PAROLEVIOL, OF PAROLEVIOL. OF PAROLE

273.6(A)DOMESTIC VIOLENCE/PC 1203.2 REARREST/REVOKE PROBATION

PC 245(A)(1) ASSAULT W/DEADLY WEAPON/ PC 417(A)(1) EXH OEADWPN:NOT F/ARM

PC3056•PAROLE VIOLATION/PC 30GO,8PC 3056 - PAROLE VIOLATION/PC 3000.8

EXHIBIT A Page 24

YES YES YES NO YES NO YES YES YES YES YES NO YES NO
_N0_
YES YES NO NO
Yis _YES_
YES YES NO YES YES YES YES YES NO YES YES
_Y_ES_ YES_
YES YES YES
1°
NO

NO
YEJ_
YES NO YES NO YES YES
"yes" YES_
YES NO YES NO NO YES YES
N0_
NO
YES_ YES_
NO
JIL
NO YES YES YES YES
YEs"
NO
ye"s'"
YES YES YES YES NO YES NO NO

NO NO NO
_N0
NO NO NO NO NO NO NO NO NO NO
^NO
NO NO NO NO
N^
NO
_YES/3056_
NO NO
N0_
NO NO NO NO YES NO NO NO NO NO
YES/3056
NO NO YES

NO NO NO NO NO
N_0_
NO NO NO NO NO NO NO NO NO NO NO
_N0
NO
N0_
NO
_N_0_
NO NO
no'
NO
no'
NO NO
_N0_
NO NO NO
_N0
NO NO NO NO NO

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 26 of 28 Page ID #:2077

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 120 of 154

[PC 182(A)(1) CONSPIRACY;COMMIT CRIME/PC 211 ROBBERY

YES

PC 459 BURGLARY/ PC 664/108Sl(A) AnEMPT AUTO THEFT

NO

VC 10851(A) VEHICLE THEFT/ PC 496D(A) RECEIVE STOLEN VEHICLE

NO

RELEASED 6/4/2020RELEASED 6/4/2020RELEASED 6/4/2020RELEASED 6/4/2020RELEASED 6/4/2020

NO

PC 245(A)(1) ASSLT W/DEADLY WPN,PC 594(B)(1) VANDLISM 550000 OR MORE

NO

PC 1203.2 REVOKE PROBATIONPC 1203.2 REVOKE PROBATIONPC 1203.2 REVOKE PROBATION

NO

PC 29800(A)(1) EX-FELON VJ/ FIREARM, HS 11370.1(A) POSS W/ FIREARM

NO

PC 3056 - PAROLE VIOLATtONPC 3056 - PAROLE VIOLATIONPC 3056 - PAROLE VIOLATION

NO

US 18USC FEDMUS ISUSC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEDMUS 18USC FEOM

NO

PC466 POSSESSION OF BURGLARY TOOLS/PC186.55(A)CRIMINAL STREET GANG

NO

PC 261 - ASSAULT TO COMMIT RAPE, PC 314 - INDECENT EXPOSURE, PC 69 - OBSTRUCT/RESIST OFFICER

YES

PC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDERPC 187(A) MURDER

YES

PC 664/211 ATTEMPT ROBBERY, PC 245(A)(1) ASSLT \N/ DEADLY WPN

YES

PC 664/187(A)ATT. MURDER/ PC 246SHOOT AT INHABITED OWE.

YES

PC 25850(A) LOADED FIREARM IN PUBLIC, HS 11370.1 POSSESSION W/ FIREARM

YES

PC 529(A)(3) FALSELY PERSONATES/PC666.5 AUTO THEFT WITH PRIOR/PC459 BURGLARY

NO

PC 647(H) DISORD CONDUa/PC 3056/PC 30000.08 PAROLE VIOLATION

YES

VC 23152(A) DUI ALCOHOL/DRUGS/VC 14601.2(A)TRAFFIC OFFENSE

YES

PC 245(A)(1) ASSAULT W/DEADLY WEAPON/ PC 459 BURGLARY

NO

PC 273.6(E) VIO CRT ORDER W/PRIORS/ PC 166(0(1) VIOL RESTRAIN ORDER

YES

PC 451 - ARSONPC451 - ARSONPC451 - ARSONPC 451 - ARSONPC 451•ARSONPC451 - ARSONPC 451 - ARSON

YES

PC 1203.2 REVOKE PROBATION.PC487(A)PC 1203.2 REVOKE PROBATION,PC487(A)

NO

HS 11364 - POSS.CONTROLLED SUSBTANCE,PC 166 - VIOL. RESTRAINING ORDER

YES

PC 3455 FAILURE TO REPORTPC 34S5 FAILURE TO REPORTPC 3455 FAILURETO REPORT

NO

PC 290.018(6) VIOLATE REQMNTTO REGISTER / FAILURE TO REGISTER/ PC290(B)FAILTO REGISTER

NO

HS 11350(A)POSSESS NARCOTIC CONTR/ PC 470(B)FORGERY

NO

PC 3455 - FAILURE TO REPORTPC 3455 - FAILURE TO REPORTPC 3455 - FAILURE TO REPORT

NO

PC 273.5(A) CORPORAL INJURY OF SPOUSE/PC 245(A)(2) ASLT W/FIREARM ON PERSON

NO

PC 459 BURGLARY,PC 1203.2 REVOKE PROBATIONPC 459 BURGLARY,PC 1203.2 REVOKE PROBATION

YES

PC 288(A) L&L W/CHILD UNDER/ PC 289(1)SEX PENETRATION:SPEC

YES

PC 647.6 ANNOY/MOLEST CHILD W/P/PC 647.6(A)(1) ANNOY/ETC CHILD UNDER

YES

PC 166(C)(1) VIOLATION RESTRAINING OROERPC 166(C)(1) VIOLATION RESTRAINING ORDER

NO

PC 273.5(A)DV.273.5(F)(1) DOMV CAUS INJ PRIOR / VC 23152(A)

YES

HS 11377- POSS. OF CONTROLLED SUBSTANCE,HS 11550 - UNDER INFLUENCE

NO

PC 245(A)(1) ASSAULT W/DEADLY WEAPON /PC 422(A)THRTN CRIME W/INTENT

YES

PC 1551.1 FUGI STATE OF MtSSOURIPC 1551.1 FUGI STATE OF MISSOURIPC 1551.1 FUGI STATE OF MISSOURI

YES

PC 245 - ASSAULT W/ DEADLY WEAPON, HS 11364 - POSS. OF PARAPHERNALIA

YES

VC 23152(A)DUI ALCOHOL/DRUGS VC 23152(A) DUI ALCOHOL/DRUGS VC 23152(A)DUI ALCOHOL/DRUGS

NO

PC 211 - ROBBERY,PC 186.22 - CRIMINAL STREET GANG,US 1325 - VIOLATION OF IMMIGRATION

YES

EXHIBIT A Page 25

YES NO NO NO NO NO NO NO NO NO YES YES YES YES YES NO NO YES NO YES NO NO YES NO NO NO NO NO NO YES YES NO YES NO YES NO YES NO YES

NO NO NO NO NO
YES/1203.2
NO YES NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO YES NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO

NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO NO

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 27 of 28 Page ID #:2078

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 121 of 154

PC664/187- ATTEMPT MURDERPC 664/187 - ATTEMPT MURDERPC 664/187- ATTEMPT MURDER

YES

YES

NO

NO

PC COURTORDERPC COURTOROERPC COURTORDERPC COURTORDERPC COURTORDERPC COURTORDER PC 1203.2•REVOKE PROBATIONPC 1203.2- REVOKE PROBATiONPC 1203.2 - REVOKE PROBATION

YES YES

NO

NO

NO

NO

YES/1203.2

NO

PC 368 - INFLia INJURY ON ELDERLY, PC 22900 - SELL TRANSPORT TEAR GAS

YES

YES

NO

NO

PC 207 - KIDNAPPING,PC 273.5 - DV,PC 148 - RESISTING ARREST

YES

YES

NO

NO

PC 211 ROBBERY/ PC212.5(C) ROBBERY SECOND DEGREE/PC 242 BATTERY

YES

YES

NO

NO

PC 245(A)(1) ASSLT W/ DEADLY WPN,PC42(A)THRTN CRIME W/INTENT TO COMMIT

YES

YES

NO

NO

PC 29800 - EX-FELON W/ FIREARM, HS 11351 - POSS. FOR SALE OF NARCOTICS

YES

YES

NO

NO

PC 273.6 - DOMESTIC VIOLENCE, PC 69 - OBSTRUCT/RESIST OFFICER

YES

YES

NO

NO

PC69- OBSTRUa/RESIST OFFICER,PC 243.4 - SEXUAL BATTERY,PC 3056 - PAROLE VIOLATION

YES

YES

NO

NO

VC 23152•DUIVC 23152 - DUIVC 23152 - DUIVC 23152 - DUIVC 23152 - DUIVC 23152 - DUIVC 23152 - DUI

NO

NO

NO

NO

PC 273.6 - DOMESTIC VIOLENCE, PC 148 - RESISTING ARREST

YES

YES

NO

NO

US 18USC FEDMUS18USC FEDMUS 18USC FEOMUS 18USC FEDMUS 18USC FEOMUS 18USC FEDMUS 18USC FEDM

NO

NO

NO

NO

PC 245 s ASSAULT W/DEADLY WEAPON,PC 148• RESISTING OFFICER

YES

YES

NO

NO

PC 243E1•DV,PC 148 - RESISTING ARRESTPC 243E1 - DV,PC 148 - RESISTING ARREST

NO

NO

NO

NO

PC 245(A)(1)ASSAULT W/ DEADLY WEAPON/PC273.S DOMES.VIOL./PC273A(B) CRUELTY TO CHILD

YES

YES

NO

NO

PC 1203.2 REVOKE PROBATION,VC 23152(G) DUI COMB,HS 11357(B)(2)POSS >28.5 GRMS CANNIBUS

NO

NO

NO

NO

HS 11550(A) UNDER INFLUENCE CNTL/PC 488 PETTY THEFT/PC 1203.2 REARREST/REVOKE PROBAT

YES

NO

NO

NO

PC422(A)THRTN CRIME W/INTENT,PC417(A)(1)EXH DEADLY WEAPON:NOT FIREARM

YES

YES

NO

NO

PC 211 ROBBERY/ PC 186.22(A) CRIMINAL STREET GANG/ PC 1203.2 PROBATION VIOLATION

YES

YES

NO

NO

PC 288 - L&L ACTS W/ CHILD UNDER lOPC288 - L&L ACTS W/ CHILD UNDER 10

YES

YES

NO

NO

PC 664/459 ATTEMPT BURGLARY,PC 459 BURGLARY,PC 547(F)DISORD CONDUCT

YES

YES

NO

NO

PC 368(B)(1) INFLICT INJURY ON ELDERLY/PC166(C)(4) VIOLATION OF RESTRAINING ORDER

YES

YES

NO

NO

PC 245 - ASSAULT W/ DEADLY WEAPON,PC 422•CRIMINAL THREATS,PC 1203.2 - REVOKE PROBATION

YES

YES

NO

NO

HS 11351 POS/PUR F/SALE NARC/HS 113S2(A)TRANSP/SELL NARC/CNTL

YES

NO

NO

NO

VC 23153(F) DUI ALCHL/DRUG COMBOVC 23153(F) DUI ALCHL/DRUG COMBO

NO

NO

NO

NO

PC 3455 FAILURE TO REPORTPC 3455 FAILURE TO REPORTPC 3455 FAILURE TO REPORT

YES

NO

YES

NO

PC 215(A)CARJACKING/ PC 245(A)(2) ASLT W/FIREARM ON PERS

YES

NO

NO

NO

PC 241(B)/243(B) MISD BATTERY PO/EMERG PRSNL/ETC,PC 148(A)(1)RESISTING ARREST

NO

NO

NO

NO

PC 666.5 - AUTO THFT W/PRIOR.VC 10851 - VEH THFT,US 1325 - VIOL OF IMMIGRATION

NO

NO

NO

NO

PC 3455 - FAILURE TO REPORT, US 1325 - VIOLATION OF IMMIGRATION

NO

NO

NO

NO

PC 245 - ASSAULT W/ DEADLY WEAPON,PC 422 - CRIMINAL THREATS

YES

YES

NO

NO

HS 11350 s POSSESSION OF CONTROLLED SUBSTANCE,HS 11377 - POSSESSION OF PARAPHERNALIA

NO

NO

NO

NO

PC 314 - INDECENT EXPOSUREPC 314 - INDECENT EXPOSUREPC 314•INDECENT EXPOSURE

YES

YES

NO

NO

HS 11378 POSSESSION FOR SALE/ HS 11377(A)POSSESSION OF A CNTRLD SUB.

NO

NO

NO

NO

PC29800(A)(1)EX-FELON W/ A FIREARM/ PC 243(E)(1) BATTERY/FORMER SPOUSE/PC 240 ASSAULT

YES

YES

NO

NO

RELEASED 6/5/20RELEASED 6/5/20RELEASEO 6/5/20RELEASED 6/5/20RELEASED 6/S/20RELEASED 6/5/20

NO

NO

NO

NO

PC 4573 BRING CNTRL SUBSTANCE INTO JAILPC 4573 BRING CNTRL SUBSTANCE INTO JAIL

NO

NO

NO

NO

PC459 BURGLARY/460(B)/PC 594(A)VANDAUSMPC 459 BUR6LARY/460(B)/PC 594(A)VANDALISM

YES

NO

NO

NO

EXHIBIT A Page 26

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 122 of 154

Case 8:20-cv-00835-JGB-SHK Document 86-7 Filed 06/19/20 Page 28 of 28 Page ID #:2079

PC COURTORDER PC COURTORDER PC COURTORDER PC COURTORDER PC COURTORDER PC COURTOROER

YES

NO

NO

NO

VC 108S1(A)VEHICLE THEFT/ PC 496D(A)RECEIVE STOLEN VEHICLE/PC 466 POSS BURG TOOLS

YES

YES

NO

NO

VC lOBSKAl VEHICLE THEFT/ PC496D(A1 RECEIVING STOLEN PROPERTY

YES

YES

NO

NO

PC - 530.5 - ACQRE PRSNL ID TO DEFRAUDPC - S30.5 - ACQRE PRSNL ID TO DEFRAUD

YES

NO

NO

NO

PC 3455 - FAILURE TO REPORTPC 3455 - FAILURETO REPORTPC 3455 - FAILURE TO REPORT

YES

NO

YES/3455

NO

RELEASED 6/4/20RELEASED 6/4/20RELEASED 6/4/20RELEASED 6/4/20RELEA5ED 6/4/20RELEASED 6/4/20

NO

NO

NO

NO

PC459 BURGLARY/PC 460(B) BURGLARY SEC. DEGREE/ PC487(A)GRND THFT

YES

NO

NO

NO

PC - 290.011 - TRANSIENT FAIL TO REGI, PC 1203.2 - REVOKE PROB.

YES

NO

NO

NO

PC 245(A)(1)ASSAULT W/ A DEADLY WEAPON/ PC 459 BURGLARY/ PC 460(B)BURGLARY SEC. DEGREE

YES

YES

NO

NO

VC 23152(A)(B)DUt/ 14601.2(A)TRAFFIC OFFENSE VC 23152(A)(B)DUI/14601.2(A)TRAFFIC OFFENSE

YES

YES

NO

NO

PC 3455 - FAILURE TO REPORT, US 1325 - VIOL OF IMMIGRATION PC 460- BURGLARY(1ST DEG,),PC 487 s GRND THFTPC 460- BURGLARY(1ST DEC.),PC 487- GRND THFT

YES

NO

NO

NO

YES

YES

NO

NO

PC 487(A)GRND THFT/PC 182(A)(1)/ PC 466 HS 11377(A)PC 487(A)GRND THFT/PC 182(A)(1)/ PC 466 HS 11377(A) YES

YES

NO

NO

TOTAL INMATES PRE-TRIALTOTAL INMATES PRE-TRIALTOTAL INMATES PRE-TRIALTOTAl INMATES PRE-TRIAL

369

TOTAL INMATES WITH ORDERS FOR BAILTOTAL INMATES WITH ORDERS FOR BAIL

267

TOTAL INMATES ARRESTED FOR PAROLE/PROBATION VIOLATIONS ONLY

9

TOTAL INMATES THAT QUALIFY FOR ZERO BAILTOTAL INMATES THAT QUALIFY FOR ZERO BAIL

0

TOTAL INMATES THAT ARE PRE-TRIAL AND HAVE AN ORDER FOR BAIL

266

EXHIBIT A Page 27

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee112o3fo1f215P4age ID #:2080

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and ORANGE COUNTY, CALIFORNIA

10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14

15 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
16 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
17 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
18 themselves and all others similarly situated, et al.,
19
Plaintiffs/Petitioners,
20
v.
21
DON BARNES, in his official capacity as 22 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
23
Defendants/Respondents.
24

Case No. 8:20-cv-00835-JGB-SHK

Assigned to the Honorable Jesus G. Bernal

DECLARATION OF ERIN WINGER, R.N. IN SUPPORT OF DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65]

Action Filed:

April 30, 2020

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DECLARATION OF ERIN WINGER, R.N.

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee122o4fo1f215P4age ID #:2081

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DECLARATION OF ERIN WINGER, R.N.

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I, Erin Winger, R.N., declare as follows:

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1. I have personal knowledge of the facts contained in this declaration unless

4 such facts are stated on information and belief, in which case I believe them to be true. If

5 called upon to testify, I could and would do so competently.

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2. I am currently employed by the Orange County Health Care Agency

7 ("HCA") as a Deputy Agency Director for Correctional Health Services ("CHS"). I have

8 held this title for over two years. Prior to that my title was Chief of Operations,

9 Correctional Health which I held for five years. I have been employed with the County

10 of Orange for twenty four (24) years - all of which has been in the area of correctional

11 health with the Health Care Agency

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3. In my capacity as the Deputy Agency Director for Correctional Health Services I oversee all the health care services for the adult and juvenile correctional facilities in Orange County.
4. I have been a registered nurse for 28 years. I currently hold bachelor's in nursing and am in process of obtaining a master's degree in nursing. I am also a Certifie Correctional Health Professional which is a certification provided by the National

18 Commission on Correctional Health Care, a leading organization for correctional health

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5. I work with the Correctional Health Services ("CHS") Medical Director to

20 oversee the health care of the inmates in the Orange County jails. I am familiar with the

21 policies promulgated by CHS in relation to COVID-19 outbreak and am very familiar

22 with the measures put in place to address the COVID-19 pandemic and prevent the

23 spread of COVID-19 in the jails.

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6. When we became aware of the COVID-19 outbreak, I worked with our

25 Medical Director to develop policies and procedures to address the prevention of the

26 spread of COVID-19 in the jails; including how to address quarantine, isolation and

27 treatment of those that test positive for COVID-19 or are feared to have been exposed to

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-1DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee132o5fo1f215P4age ID #:2082

1 COVID-19. In my preparation of this plan we took into consideration and implemented

2 the CDC Interim Guidelines for correctional facilities in Orange County.

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7. I have reviewed the declarations submitted in support of Plaintiffs pleadings

4 in this matter. I have reviewed the inmates' medical charts to investigate allegations

5 regarding Correctional Health Services.

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a) Plaintiff Melissa Ahlman (Declarations at Dkts. 41-19, 41-41, 57-1, 79-

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33, 79-34.)

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1. Plaintiff Ahlman is housed in the Women's Jail, sector P-13. Plaintiff

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Ahlman alleges that on or around May 14, 2020, she requested a

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COVID test and still had not been tested. (Dkt. 57-1, ~ 4.)

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IL I am informed and believe that Plaintiff Ahlman was tested on May

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21st and the results were negative. ni. Plaintiff Ahlman also alleges that she does not know anyone in her
tank (P-13) that has been tested, including some that appear to have symptoms. (Dkt. 41-19, ~ 17.) 1v. I am informed and believe that all the women housed in P-13 were tested due to exposure to COVID.

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v. Plaintiff Ahlman alleges that when she goes to the medical unit there

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is never enough room to keep six feet apart and that they might put

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someone with virus symptoms on the bench with her. (Dkt. 41-19, ~

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14.)

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1. I am informed and believe that when inmates leave their sector to go

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to medical, they are instructed to wear a mask to practice safe social

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distancing. In addition, there are blue pieces of tape on the medical

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benches to give the inmates six feet of social distancing. There are

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only as many inmates waiting in the medical unit as there are blue

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tape marks. Patients who are reporting COVID-19 symptoms are

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-2DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee142o6fo1f215P4age ID #:2083

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seen outside of normal sick call hours and do not congregate on the medical bench to be seen by the medical unit. b) Plaintiff Daniel Kauwe: (Dkts. 41-28, 41-37) L Plaintiff Kauwe alleges that he needs medical attention for depression, stress, isolation and acid reflux but cannot get medical attention. (Dkt. 41-28, ~~ 14-15.) 11. I reviewed inmate Kauwe' s chart and found that inmate Kauwe was seen by medical and mental health for the issues complained of above on April 1, April 13, April 21, April 29, May 1, May 2, May 6, May 7, May 8, May 12, May 14, May 20, May 26, and June 9. I am informed and believe that inmate Kauwe is receiving his requested medication (which was refilled again on June 12.). 111. In addition, the ACLU has contacted me directly about this inmate and requested a health evaluation on his behalf. c) Plaintiff Michael Seif: (Dkts. 41-13, 41-32, 57-4) vi. Plaintiff Seif alleges having cold like symptoms and not being seen by medical. (Dkt. 41-13, ~ 7) vii. I reviewed Plaintiff Seif s chart and found that Seif submitted medical slips on the following topics and dates: a. 4/10/20 Health Message Slip submitted for trouble breathing.
Evaluated by CHS - diagnosis not related to COVID b. 4/21/20 Health Message Slip submitted for request for athletic
supporter. Evaluated by CHS. c. 4/28/20 Health Message Slip submitted to dental for "toothache".
Evaluated by CHS. d. 5/14/20 Health Message Slip submitted requesting
buprenorphine. Evaluated by CHS. e. 5/25/20 Health Message Slip submitted by individual for "pains
-3DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee152o7fo1f215P4age ID #:2084

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in chest". Evaluated by CHS - diagnosis not related to COVID f. 5/27120 Health Message Slip submitted by individual for
abdominal issue. Evaluated by CHS. g. The only mention of cold symptoms was on a health request
dated 3/17/20. Patient was evaluated by CHS and exhibited mild cold symptoms (no fever) and did NOT meet criteria in place at that time for COVID-19 testing. vni. Plaintiff Seif alleges that no one in his tier has been tested for COVID. (Dkt. 41-13 ~ 9.) ix. I am informed and believe that no inmate from Central Men's Jail, Mod D, sector 19, where Plaintiff Seif is housed, has tested positive for COVID-19. Since Plaintiff Seif did not have COVID-19 symptoms and was not housed in an area with a known exposure to COVID-19, Plaintiff Seif was not tested. d) Plaintiff Javier Esparza: (Dkts. 41-15, 41-33.) L Plaintiff Esparza is housed in Theo Lacy Facility, Mod P, sector 45. Plaintiff Esparza alleges that he doesn't know if anyone in his cell has been tested for COVID and that no one is coming around to check on him. (Dkt. 41-15, ~ 8.) u. There have been no known COVID cases that originated at the Theo Lacy Facility. All known COVID cases originated out of Central Men's and Central Women' s Jail. However, some inmates who tested positive at Central Men's Jail and/or tested positive during booking into the Jail (i.e., new arrestees) have been placed in isolation at Theo Lacy, but those inmates have no contact with other inmates until they have completed isolation. UL I am informed and believe that Plaintiff Esparza has never been in a housing area with known COVID-19 exposure and therefore a
-4DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee162o8fo1f215P4age ID #:2085

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COVID test is not necessary. In addition, I reviewed his chart and Plaintiff Esparza has never reported COVID symptoms or requested COVID-19 test. e) Plaintiff Cynthia Campbell: (Dkts. 41-30, 41-40.) I. Plaintiff Campbell is housed at Central Women's Jail in sector P-13. Plaintiff Campbell alleges that when she travels to the medical unit it is too crowded to social distance. (Dkt. 41-30,, 11.) 11. I am informed and believe that when inmates leave their sector to go to medical, they are instructed to wear a mask to practice safe social distancing measures. In addition, there are blue pieces of tape on the medical benches to identify for the inmates how to maintain six feet o social distancing. There are only as many inmates waiting in the medical unit as there are blue tape marks. 111. I am informed and believe that all the women housed in P-13 were tested due to exposure to COVID. 1v. I reviewed Campbells' chart. Plaintiff Campbell was tested for COVID-19 on May 14, 2020, and the results came back positive on May 15. Campbell was medically isolated consistent with guidelines and has since recovered without hospitalization. f) Plaintiff Monique Castillo: (Dkts. 41-27, 41-42.) I. Plaintiff Castillo is housed at Central Women's Jail in sector P-13. Plaintiff Castillo alleges that when she goes to the medical unit there is never enough room to keep six feet apart and that they might put someone with virus symptoms on the bench with her. (Dkt. 41-27,, 9, 11.) IL I am informed and believe that when inmates leave their sector to go to medical, they are instructed to wear a mask to practice safe social distancing. In addition, there are blue pieces of tape on the medical
-5DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee172o9fo1f215P4age ID #:2086

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benches to identify for the inmates how to maintain six feet of social distancing. There are only as many inmates waiting in the medical unit as there are blue tape marks. Patients who are reporting COVID 19 symptoms are seen outside of normal sick call hours and do not congregate on the medical bench to be seen by the medical unit. 111. I am informed and believe that all the women housed in P-13 were tested due to exposure to COVID. 1v. I reviewed Plaintiff Castillo's chart. Castillo was placed in quarantine due to exposure to COVID-19 Plaintiff Castillo was tested for COVID-19 on 5/21/20 and the results came back negative. g) Plaintiff Mark Trace: (Dkts., 41-11, 41-13, 41-24, 41-38, 41-39.) 1. Plaintiff Trace is housed at Central Men's Jail in Mod D, sector 20. Plaintiff Trace alleges that he has requested COVID testing 4 times by submitting medical slips and still has not been tested. (Dkt. 41-
11,~8.)
11. I am informed and believe that Plaintiff Trace was never housed in an area with known exposure to COVID-19.
111. I reviewed Plaintiff Trace's chart. Trace submitted a request for COVID-19 testing on May 12 and May 29. Plaintiff Trace was examined by CHS and did not have COVID symptoms. Since Plaintiff Trace did not have COVID-19 symptoms and was not housed in an area with a known exposure to COVID-19, Plaintiff Trace was not tested.
h) PlaintiffCecibel Ortiz: (Dkts. 41-21, 41-31.) L Plaintiff Ortiz is housed at Central Women's Jail in sector P-13. Plaintiff Ortiz alleges that she comes in close contact with other individuals when travelling to medical. (Dkt. 41-21, ~ 10.)
-6DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee183o0fo1f215P4age ID #:2087

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IL I am informed and believe that when inmates leave their sector to go to medical, they are instructed to wear a mask to practice safe social distancing measures. In addition, there are blue pieces of tape on the medical benches to identify for the inmates how to maintain six feet of social distancing. There are only as many inmates waiting in the medical unit as there are blue tape marks.
111. I am informed and believe that all the women housed in P-13 were tested due to exposure to COVID.
IV. I reviewed Plaintiff Ortiz's chart. Ortiz was tested for COVID-19 o May 11 and the results came back positive on May 13. Plaintiff Orti was placed in medical isolation consistent with guidelines. Ortiz has since recovered without hospitalization.
i) Plaintiff Don Wagner: (Dkts. 41-4, 41-12, 41-35.) 1. Plaintiff Wagner is housed at Theo Lacy Facility in Mod P-47. Plaintiff Wagner alleges that he made several requests to be tested fo COVID-19 and was denied. (Dkt. 41-12, ~ 8.) Plaintiff Wagner also alleges that he heard he was housed with an inmate whose dad was in the hospital with COVID-19 (Dkt. 41-4) and he does not know if his current cellmate is positive for COVID-19. (Dkt. 41-12, ~ 3.) IL There have been no known COVID cases that originated at the Theo Lacy Facility. All known COVID cases originated out of Central Men's and Central Women's Jail. However, some inmates who tested positive at Central Men's Jail and/or tested positive during booking into the Jail (i.e., new arrestees) have been placed in
111. isolation at Theo Lacy but those inmates have no contact with other inmates until they have completed isolation
IV. I reviewed this inmate's chart and most of the requests for health services have been dental related. The only medical slip that
-7DECLARATION OF ERIN WINGER

Case 8C:2a0s-ec:v2-000-5853656-J8G, B07-S/0H1K/20D20o,cIuDm: e1n1t78369-9863F, DilekdtE0n6t/r1y9: /22-02, PPaaggee193o1fo1f215P4age ID #:2088

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mentions cold-like symptoms was dated April 5. Plaintiff Wagner was evaluated on April 5, where he did not have a fever and the exam results were normal. On April 6, Plaintiff Wagner was rechecked by healthcare and he denied the cold-like symptoms he had complained of on April 5. As a result, Plaintiff Wagner was not tested for COVID-19. j) Declarant Jose Armendariz: (Dkts. 41-10, 79-21.) i. Inmate Armendariz is housed at Theo Lacy Facility in a cell by himself. Inmate Armendariz alleges that he was tested for COVID on May 8 but was never quarantined or isolated. (Dkt. 41-10, ~ 22.) n. I reviewed Armendariz's chart. Armendariz was tested for COVID19 on May 8 and the results were negative. k) Declarant Donald Timmons: (Dkt. 57-5.) i. Inmate Timmons is housed at Central Men's Jail and tested positive for COVID on May 1. (Dkt. 57-5, ~ 6.) 1i. I reviewed Timmons chart. Timmons did test positive on May 1. He was isolated, has recovered from the virus and cleared to regular housing without incident. I) Declarant Mitchell John Lentz: (Dkt. 41-18.) 1. Inmate Lentz is housed in Central Men's Jail and tested positive for COVID on April 29. (Dkt. 41-18, ~ 16.) 11. I reviewed Lentz's chart. Lentz tested positive on April 24. Inmate Lentz was isolated and remained in isolation (with no COVID symptoms) until he was cleared to regular housing without incident. m) Declarant Carlos Godinez Sanchez: (Dkt. 41-16.) i. Inmate Sanchez is housed in Central Men's Jail in Mod A. Inmate Sanchez alleges that he was tested for COVID on April 22. (Dkt. 4116, ~ 22.)
-8DECLARATION OF ERIN WINGER

Case 8:C2a0s-cev:-200-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-8963F,ilDekdtE06n/t1ry9:/20-2, Page 1032ofo1f 2154Page ID #:2089

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11. I reviewed Godinez Sanchez chart. Inmate Sanchez COVID test results came back negative on April 24.
n) Declarant Jaime Herrera: (Dkts. 41-23, 41-36.) 1. Inmate Herrera is housed in Central Men's Jail in Mod D, sector 19. Inmate Herrera alleges that he was quarantined because a deputy in the jail tested positive for COVID and has not been tested for COVID. (Dkt. 41-23, ~fi 6-7.) 11. I am informed and believe that inmate Herrera's sector did not have known exposure to COVID. The entire Central Men's Jail went on "lockdown" to minimize inmate movement as part of COVID mitigation measures 1. I reviewed inmate Herrera's chart and did not find a request for COVID testing. Since Herrera did not have COVID-19 symptoms and was not housed in an area with a known exposure to COVID-19, the inmate was not tested.
o) Declarant Charles Lucious: (Dkt. 57-2.) 1. Inmate Lucious is housed in the Theo Lacy Facility in Mod 0, section 39. Lucious alleges that he left for a medical appointment outside of the facility and when he returned, he was not tested for COVID-19. (Dkt. 57-2, ~ 13.) 11. I am informed and believe that CHS and/or OCSD are temperature and symptom screening for individuals transferring between facilities, court, appointments, etc., however, CHS/OCSD do not conduct COVID testing on individuals who are re-entering the Jail due to transfer, court, appointments, etc., unless clinically indicated.
111. I am informed and believe that since inmate Lucious did not have a temperature or other COVID symptoms when he returned to the Jail
-9DECLARATION OF ERIN WINGER

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-8963F,ilDekdtE06n/t1ry9:/20-2, Page 1133ofo1f 2154Page ID #:2090

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after a medical appointment, there was no clinical reason to test him forCOVID. p) Declarant Mejia Sanchez: (Dkt. 57-3, 79-30.) 1. Inmate Sanchez is housed in Theo Lacy in Mod P, sector 45. Inmate Sanchez alleges that his neighboring sector, M-30 and M-27, tested positive for COVID. (Dkt. 79-30, ~,-r 5-6.) Inmate Sanchez alleges that he has had COVID-19 symptoms and requested a test on May 11
but was denied. (Id. ,-r 7.)
IL I reviewed this inmate's chart and found that inmate Mejia Sanchez submitted a request for COVID testing on May 11. He was evaluated by CHS on May 12 and the findings were consistent with a common cold. The inmate was provided treatment for common cold symptoms. After May 12, the inmate made subsequent medical requests regarding complaints of ear wax and requests to see the optometrist.
m. There have been no known COVID cases that originated at the Theo Lacy Facility. All known COVID cases originated out of Central Men's and Central Women's Jail. However, some inmates who tested positive at Central Men's Jail and/or tested positive during booking into the Jail (i.e., new arrestees) have been placed in isolation at Theo Lacy, but those inmates have no contact with other inmates until they have completed isolation.
q) Declaration Aaron Jackson: (Dkt. 41-10.) 1. Inmate Jackson is housed at Central Men's Jail in Mod D, sector 15. Inmate Jackson alleges that he was tested for COVID on May 8.
(Dkt. 41-10, ,-r 23.) Inmate Jackson alleges that he requested testing
before May 8 but never received a response. (Id.)
-10-
DECLARATION OF ERIN WINGER

Case 8:C2a0s-cev:-2000-853556-6J8G,B0-7S/H01K/20D2o0c,uIDm:e1n1t78369-8963F,ilDekdtE06n/t1ry9:/20-2, Page 1234ofo1f 2154Page ID #:2091

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IL Assuming this inmate's booking number is 296993 71, inmate Jackson

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tested positive for COVID on May 11. The inmate was medically

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isolated consistent with guidelines and has since recovered without

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hospitalization.

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ui. In reviewing this inmate's chart, inmate Jackson never submitted a

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medical slip requesting testing before May 8. On March 20, 2020,

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this individual complained of feeling sick, but never requested

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COVID testing and after being evaluated on March 20th, he did not

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meet testing criteria in place at that time.

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I declare under penalty of perjury under the laws of the United States that the

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Executed June 18, 2020, at Santa Ana, California. Erin Winger;J{N

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28 1 There was more than one inmate with this name and the declaration did not provide the inmate' s booking number.
Therefore, based on his housing location in the declaration, I presume this to be the correct inmate.
-11DECLARATION OF ERIN WINGER

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 135 of 154
ECF 87

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 187739F9i6le3d, D06k/t2E2n/t2ry0: 2P-2a,gPea1geof1436Poaf g1e54ID #:2092

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
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Attorneys for Defendants DON BARNES 9 and ORANGE COUNTY, CALIFORNIA

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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15 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
16 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
17 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
18 themselves and all others similarly situated, et al.,
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Plaintiffs/Petitioners,
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v.
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DON BARNES, in his official capacity as 22 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
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Defendants/Respondents.
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Case No. 8:20-cv-00835-JGB-SHK Assigned to the Honorable Jesus G. Bernal NOTICE OF LODGING RE: [PROPOSED] ORDER RE: DEFENDANTS’ APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65] Action Filed: April 30, 2020

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- 1 NOTICE OF LODGING

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 187739F9i6le3d, D06k/t2E2n/t2ry0: 2P-2a,gPea2geof1437Poaf g1e54ID #:2093

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 PLEASE TAKE NOTICE:

2

Pursuant to Local Rule 5-4.4.1, the following order titled [PROPOSED] ORDER

3 RE: DEFENDANTS’ APPLICATION TO IMMEDIATELY DISSOLVE

4 PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED

5 HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65] was lodged on

6 June 22, 2020 and is attached.

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This order relates to the motion which is docket number 86.

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Respectfully submitted,

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LEON J. PAGE, COUNTY COUNSEL

LAURA D. KNAPP, SUPERVISING DEPUTY

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D. KEVIN DUNN, SENIOR DEPUTY

REBECCA S. LEEDS, SENIOR DEPUTY

11

KAYLA N. WATSON, DEPUTY

12
DATED: June 22, 2020
13 14 15

By: _____/S/____________________________ Kayla N. Watson, Deputy Attorneys for Defendants DON BARNES and COUNTY OF ORANGE

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- 2 NOTICE OF LODGING

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 187739F9i6le3d, D06k/t2E2n/t2ry0: 2P-2a,gPea3geof1438Poaf g1e54ID #:2094

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

CERTIFICATE OF SERVICE

2

I do hereby declare that I am a citizen of the United States employed in the County of

Orange, over 18 years old and that my business address is 333 W. Santa Ana Blvd., Ste.

3 407, Santa Ana, California 92701; and my e-mail address is simon.perng@

coco.ocgov.com. I am not a party to the within action.

4

[ ] (BY U.S. MAIL) On

, I caused the document, DEFENDANTS’ EX

5 PARTE APPLICATION TO STAY ALL PROCEEDINGS PENDING APPEAL TO

THE NINTH CIRCUIT AND RESOLUTION OF APPEAL, to be placed in an

6 envelope(s) addressed as shown below (last known addresses) for collection and mailing at

Santa Ana, California, following our ordinary business practices. I am readily familiar with

7 this office’s practice for collecting and processing correspondence for mailing. On the

same day that correspondence is placed for collection and mailing, it is deposited in the

8 ordinary course of business with the United States Postal Service in a sealed envelope with

postage fully prepaid.

9

10

[X] (BY CM/ECF) On June 22, 2020, I caused the aforementioned document to be

served upon all counsel of record in this action who are registered with the United States

11 District Court’s CM/ECF system and listed below by utilizing the United States District

Court’s CM/ECF system:

12

MITCHELL KAMIN (SBN 202788)

JOHN WASHINGTON (SBN 315991)

13 mkamin@cov.com

jwashington@sshhlaw.com

AARON LEWIS (SBN 284244)

SCHONBRUN, SEPLOW, HARRIS,

14 alewis@cov.com

HOFFMAN & ZELDES LLP

BRITTANY BENJAMIN (SBN 323968) 11543 W. Olympic Blvd.

15 bbenjamin@cov.com

Los Angeles, CA 90064

COVINGTON & BURLING LLP

Telephone: (310) 399-7040

16 1999 Avenue of the Stars

Facsimile: (310) 399-7040

Los Angeles, CA 90067-4643

17 Telephone: (424) 332-4800

PETER ELIASBERG (SBN 189110)

Facsimile: (424) 332-4749

peliasberg@aclu.org

18

AMERICAN CIVIL LIBERTIES FUND OF

CASSANDRA STUBBS (SBN 218849) SOUTHERN CALIFORNIA

19 cstubbs@aclu.org

1313 W 8th St

AMERICAN CIVIL LIBERTIES

Los Angeles, CA 90017

20 UNION FOUNDATION

Telephone: (213) 977-9500

201 W. Main St., Suite 402

21 Durham, NC 27701

PAUL HOFFMAN (SBN 71244)

Telephone: (919) 682-5659

hoffpaul@aol.com

22 Facsimile: (919) 682-5961

UNIVERSITY OF CALIFORNIA, IRVINE

SCHOOL OF LAW CIVIL RIGHTS

23 STACEY GRIGSBY*

LITIGATION CLINIC

sgrigsby@cov.com

401 E. Peltason Dr., Suite 1000

24 AMIA TRIGG** (SBN 282890)

Irvine, CA 92687

atrigg@cov.com

Telephone: (949) 824-0066

25 COVINGTON & BURLING LLP

One CityCenter

CARL TAKEI

26 850 Tenth Street NW

ctakei@aclu.org

Washington, DC 20001

SOMIL TRIVEDI*

27 Telephone: (202) 662-6000

strivedi@aclu.org

Facsimile: (202) 778-5906

CLARA SPERA*

28

cspera@aclu.org

AMERICAN CIVIL LIBERTIES UNION

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 187739F9i6le3d, D06k/t2E2n/t2ry0: 2P-2a,gPea4geof1439Poaf g1e54ID #:2095

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 OLIVIA ENSIGN* oensign@aclu.org
2 CRISTINA BECKER* cbecker@aclu.org
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
4 201 W. Main St., Suite 402 Durham, NC 27701
5 Telephone: (919) 682-5659 Facsimile: (919) 682-5961
6 7 8

FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 ZOE BRENNAN-KROHN** (SBN 324912) zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415)-343-0769 Facsimile: (415) 255-1478

9

I declare that I am employed in the office of a member of the Bar of this Court at

whose direction the service was made.

10

Executed in Santa Ana, California this 22nd day of June, 2020

11

_______/S/_______________________________

12

Simon Perng

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Case 8:20C-cavs-e0:02803-55-5J6G6B8-,S0H7K/01D/2o0c2u0m, IeDn:t18177-1399F6il3e,dD0k6tE/2n2t/r2y0: 2-P2,aPgeag1eo1f420 oPfa1g5e4ID #:2096

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP, SUPERVISING DEPUTY (CA SBN 162800)
2 laura.knapp@coco.ocgov.com D. KEVIN DUNN, SENIOR DEPUTY (CA SBN 194604)
3 kevin.dunn@coco.ocgov.com REBECCA S. LEEDS, SENIOR DEPUTY (CA SBN 221930)
4 rebecca.leeds@coco.ocgov.com KAYLA N. WATSON, DEPUTY (CA SBN 286423)
5 kayla.watson@coco.ocgov.com 333 West Santa Ana Boulevard, Suite 407
6 Post Office Box 1379 Santa Ana, California 92702-1379
7 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
8
Attorneys for Defendants DON BARNES 9 and COUNTY OF ORANGE (erroneously named
as ORANGE COUNTY, CALIFORNIA)
10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

EASTERN DIVISION

14 MELISSA AHLMAN, DANIEL KAUWE, MICHAEL SEIF, JAVIER ESPARZA,
15 PEDRO BONILLA, CYNTHIA CAMPBELL, MONIQUE CASTILLO,
16 MARK TRACE, CECIBEL CARIDAD ORTIZ, and DON WAGNER, on behalf of
17 themselves and all others similarly situated, et al.,
18
Plaintiffs/Petitioners,
19
v.
20
DON BARNES, in his official capacity as 21 Sheriff of Orange County, California; and
ORANGE COUNTY, CALIFORNIA.
22
Defendants/Respondents.
23
24 //
25 //
26 //
27 //
28 //

Case No. 8:20-cv-00835-JGB-SHK [PROPOSED] ORDER RE: DEFENDANTS’ APPLICATION TO IMMEDIATELY DISSOLVE PRELIMINARY INJUNCTION OR ALTERNATIVELY SET EXPEDITED HEARING TO DISSOLVE PRELIMINARY INJUNCTION [ECF 65]

- 1 -

Case 8:20C-cavs-e0:02803-55-5J6G6B8-,S0H7K/01D/2o0c2u0m, IeDn:t18177-1399F6il3e,dD0k6tE/2n2t/r2y0: 2-P2,aPgeag2eo1f421 oPfa1g5e4ID #:2097

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

PROPOSED ORDER

2

Upon consideration of Defendants’ Application to Dissolve the Preliminary

3 Injunction and Memorandum of Points and Authorities in support thereof, and for good

4 cause shown:

5

IT IS HEREBY ORDERED that Defendants’ Application to Dissolve the

6 Preliminary Injunction be, and hereby is, GRANTED.

7

IT IS FURTHER ORDERED that the Preliminary Injunction Order [ECF 65]

8 entered May 26, 2020, is dissolved.

9

ALTERNATIVELY, IT IS ORDERED that Defendants expedited evidentiary

10 hearing to further establish the facts supporting dissolving the Preliminary Injunction

11 Order is hereby, GRANTED.

12

IT IS SO ORDERED.

13

14 Dated: _______________, 2020
15 16

_____________________________________ Honorable Jesus G. Bernal United States District Court Central District of California, Eastern Division

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- 2 -

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 142 of 154
ECF 90

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197039F9i6le3d, D06k/t2E4n/t2ry0: 2P-2a,gPea1geof1643Poaf g1e54ID #:2116

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197039F9i6le3d, D06k/t2E4n/t2ry0: 2P-2a,gPea2geof1644Poaf g1e54ID #:2117

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197039F9i6le3d, D06k/t2E4n/t2ry0: 2P-2a,gPea3geof1645Poaf g1e54ID #:2118
Exhibit A

Case 8:20-cv-00835-JGB-SHK Document 90 Filed 06/24/20 Page 4 of 6 Page ID #:2119

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 146 of 154

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197039F9i6le3d, D06k/t2E4n/t2ry0: 2P-2a,gPea5geof1647Poaf g1e54ID #:2120

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

CERTIFICATE OF SERVICE

2

I do hereby declare that I am a citizen of the United States employed in the County of

Orange, over 18 years old and that my business address is 333 W. Santa Ana Blvd., Ste.

3 407, Santa Ana, California 92701; and my e-mail address is simon.perng@

coco.ocgov.com. I am not a party to the within action.

4

[ ] (BY U.S. MAIL) On

, I caused the document, SUPPLEMENTAL

5 DECLARATION OF C. HSIEN CHIANG, M.D. IN SUPPORT OF DEFENDANTS’

EX PARTE APPLICATION TO DISSOLVE MAY 26, 2020 PRELIMINARY

6 INJUNCTION; OR IN THE ALTERNATIVE, SET EXPEDITED HEARING TO

DISSOLVE PRELIMINARY INJUNCTION, to be placed in an envelope(s) addressed as

7 shown below (last known addresses) for collection and mailing at Santa Ana, California,

following our ordinary business practices. I am readily familiar with this office’s practice

8 for collecting and processing correspondence for mailing. On the same day that

correspondence is placed for collection and mailing, it is deposited in the ordinary course of

9 business with the United States Postal Service in a sealed envelope with postage fully

prepaid.

10

11

[X] (BY CM/ECF) On June 24, 2020, I caused the aforementioned document to be

served upon all counsel of record in this action who are registered with the United States

12 District Court’s CM/ECF system and listed below by utilizing the United States District

Court’s CM/ECF system:

13

MITCHELL KAMIN (SBN 202788)

JOHN WASHINGTON (SBN 315991)

14 mkamin@cov.com

jwashington@sshhlaw.com

AARON LEWIS (SBN 284244)

SCHONBRUN, SEPLOW, HARRIS,

15 alewis@cov.com

HOFFMAN & ZELDES LLP

BRITTANY BENJAMIN (SBN 323968) 11543 W. Olympic Blvd.

16 bbenjamin@cov.com

Los Angeles, CA 90064

COVINGTON & BURLING LLP

Telephone: (310) 399-7040

17 1999 Avenue of the Stars

Facsimile: (310) 399-7040

Los Angeles, CA 90067-4643

18 Telephone: (424) 332-4800

PETER ELIASBERG (SBN 189110)

Facsimile: (424) 332-4749

peliasberg@aclu.org

19

AMERICAN CIVIL LIBERTIES FUND OF

CASSANDRA STUBBS (SBN 218849) SOUTHERN CALIFORNIA

20 cstubbs@aclu.org

1313 W 8th St

AMERICAN CIVIL LIBERTIES

Los Angeles, CA 90017

21 UNION FOUNDATION

Telephone: (213) 977-9500

201 W. Main St., Suite 402

22 Durham, NC 27701

PAUL HOFFMAN (SBN 71244)

Telephone: (919) 682-5659

hoffpaul@aol.com

23 Facsimile: (919) 682-5961

UNIVERSITY OF CALIFORNIA, IRVINE

SCHOOL OF LAW CIVIL RIGHTS

24 STACEY GRIGSBY*

LITIGATION CLINIC

sgrigsby@cov.com

401 E. Peltason Dr., Suite 1000

25 AMIA TRIGG** (SBN 282890)

Irvine, CA 92687

atrigg@cov.com

Telephone: (949) 824-0066

26 COVINGTON & BURLING LLP

One CityCenter

CARL TAKEI

27 850 Tenth Street NW

ctakei@aclu.org

Washington, DC 20001

SOMIL TRIVEDI*

28 Telephone: (202) 662-6000

strivedi@aclu.org

Facsimile: (202) 778-5906

CLARA SPERA*

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197039F9i6le3d, D06k/t2E4n/t2ry0: 2P-2a,gPea6geof1648Poaf g1e54ID #:2121

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1
2 OLIVIA ENSIGN* oensign@aclu.org
3 CRISTINA BECKER* cbecker@aclu.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
5 201 W. Main St., Suite 402 Durham, NC 27701
6 Telephone: (919) 682-5659 Facsimile: (919) 682-5961
7 8 9

cspera@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 ZOE BRENNAN-KROHN** (SBN 324912) zbrennan-krohn@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm Street San Francisco, CA 94111 Telephone: (415)-343-0769 Facsimile: (415) 255-1478

10

I declare that I am employed in the office of a member of the Bar of this Court at

whose direction the service was made.

11

Executed in Santa Ana, California this Twenty Fourth day of June, 2020

12

_______/S/_______________________________

13

Simon Perng

14

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21

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Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 149 of 154
ECF 93

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197339F9i6le3d, D06k/t2E6n/t2ry0: 2P-2a,gPea1geof1350Poaf g1e54ID #:2162

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. SACV 20-00835 JGB (SHKx)
Title Melissa Ahlman, et al. v. Don Barnes, et al.

Date June 26, 2020

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings:

Order (1) DENYING Defendants’ Ex Parte Application to Dissolve Injunction (Dkt. No. 86); (2) GRANTING Plaintiffs’ Motion for Expedited Discovery (Dkt. No. 83); (3) DENYING Plaintiff’s Ex Parte Application to Shorten Time (Dkt. No. 89); and (4) VACATING the July 20, 2020 Hearing (IN CHAMBERS)

Before the Court is (1) an Ex Parte Application to Immediately Dissolve Preliminary Injunction file by Defendants Don Barnes and Orange County; (2) a Motion for Expedited Discovery filed by Plaintiffs Melissa Ahlman, Pedro Bonilla, Cynthia Campbell, Monique Castillo, Javier Esparza, Daniel Kauwe, Cecibel Caridad Ortiz, Michael Seif, Mark Trace, and Don Wagner. (“Application,” Dkt. No. 86; “Motion,” Dkt. No. 83.) The Court finds these matters appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of and in opposition to the Motion, the Court DENIES the Application and GRANTS the Motion.1 The Court VACATES the hearing set for July 20, 2020 on the Motion.

I. BACKGROUND

On May 26, 2020, the Court issued an injunction compelling Defendants to implement several practices within the Orange County Jails to quell the spread of COVID-19. (“PI Order,” Dkt. No. 65.) Defendants then requested that both this Court and the Ninth Circuit stay the injunction. (Dkt. Nos. 66, 68.) Those requests were denied. (Dkt. Nos. 72, 75, 80.)

1 Plaintiffs’ ex parte application to shorten the time for the Motion hearing is DENIED AS MOOT. (See Dkt. No. 89.)

Page 1 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197339F9i6le3d, D06k/t2E6n/t2ry0: 2P-2a,gPea2geof1351Poaf g1e54ID #:2163

On June 18, 2020, Plaintiff filed a motion requesting expedited discovery. (Motion.) Defendants filed an ex parte application requesting that the Court immediately dissolve the preliminary injunction on June 19, 2020. (Application.)
II. DISCUSSION
After finding that Defendants’ response to the COVID-19 outbreak in Orange County Jail was inadequate, the Court ordered Defendants to implement several remedial measures aimed at stopping the spread of the disease. (See PI Order.) Now, Defendants seek to dissolve that injunction, arguing that it is no longer necessary. The request is premature.
Dissolution of a preliminary injunction is only proper only if there has been a significant change that renders the original preliminary injunction inequitable. Alto v. Black, 738 F3d 1111, 1120 (9th Cir. 2013). Defendants insist that the rate of infection is now zero. (Application at 5.) However, they support this assertion with their own evidence and testimony from County employees. Certainly, the County employees are incentivized to submit evidence that will support the County’s position.
Before the Court can conclude that the circumstances have truly changed in such a way to warrant dissolution of the injunction, Plaintiffs must have the opportunity to evaluate Defendants’ evidence and determine whether other evidence contradicts it. Because it would serve both parties’ interests to quickly determine the actual state of the outbreak, there is good cause for ordering expedited discovery. See Fed. R. Civ. Pro. 26(d)(1); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (“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.”)
Moreover, even though Defendants now insist that there is zero transmission within the Jail, they acknowledge that there are still six active cases. (Application at 5.) As Defendants have previously demonstrated, six cases can rapidly become three hundred in the absence of sufficient mitigating measures. The country remains deep in the throes of the outbreak—tens of thousands of new cases are still being reported every day.2 Even if Defendants have dropped the transmission rate to zero, it is certainly not time yet to draw down preventative measures— unless Defendants consistently implement those steps outlined in the injunctive order, a second spike is likely occur.
Defendants have repeatedly insisted that they are going above and beyond what is necessary to stop the spread of infection—including implementing all the measures that the court ordered with the injunction. (See, e.g., Dkt. No. 44-10 ¶ 2 (“OCSD has, at a minimum already implemented all of the mitigation efforts outlined in plaintiffs’ request for relief.”).) Yet they have filed four separate requests asking to be relieved of the obligation to do what they have long

2 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 8:2C0-acsve-0: 02803-555-J6G68B,-0S7H/0K1/2D0o2c0u,mIDe:n1t 197339F9i6le3d, D06k/t2E6n/t2ry0: 2P-2a,gPea3geof1352Poaf g1e54ID #:2164
claimed to be doing. And they refuse to provide Plaintiffs with any information regarding their compliance with the Court’s order. (Application, Exhibit A.)
III. CONCLUSION
For the reasons above, the Court:
1. DENIES Defendants’ Application;
2. GRANTS Plaintiffs’ Motion;
3. ORDERS that by July 8, 2020, (1) Defendants will serve responses to all outstanding written discovery, (2) the parties will agree on a date for inspection of the Jail to be no later than July 15, 2020, and (3) the parties will agree on a time and date for the video depositions of Erin Winger, Dr. C. Hsien Chiang, and Commander Joseph Balicki to be no later than July 15, 2020;
4. ORDERS the parties to meet and confer regarding additional discovery;
5. ORDERS Defendants to submit weekly updates to Plaintiffs regarding compliance with the injunction so long as the injunction remains in effect;
6. ADMONISHES both parties to fully comply with the entirety of this Order and all other orders applicable to this case—failure to do so will result in sanctions;
7. VACATES the hearing set for July 20, 2020 on the Motion.
8. DENIES as moot Plaintiffs’ ex parte application to shorten the time for the Motion hearing (See Dkt. No. 89.).
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case: 20-55668, 07/01/2020, ID: 11739963, DktEntry: 2-2, Page 153 of 154
Dkt. 28

CasCea:s2e0: -2505-656585,6087, /0061//2290/2200,2I0D,:I1D1: 713197936730,5D0k, tDEknttEryn:tr2y-:22, 8P,aPgaeg1e514 ooff 1154

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MELISSA AHLMAN; et al.,

No. 20-55568

FILED
JUN 29 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiffs-Appellees,
v.
DON BARNES, in his official capacity as Sheriff of Orange County, California; COUNTY OF ORANGE,

D.C. No. 8:20-cv-00835-JGB-SHK Central District of California, Santa Ana
ORDER

Defendants-Appellants.

Before: GRABER, WARDLAW, and R. NELSON, Circuit Judges. Appellants’ urgent motion to stay the district court’s May 26, 2020 order
(Docket Entry No. 26) is denied. Appellants’ urgent motion raises arguments regarding the district court’s evaluation of evidence presented in support of appellants’ ex parte application to dissolve the May 26, 2020 preliminary injunction. We lack jurisdiction to review the district court’s June 26, 2020 order denying appellants’ ex parte request absent the filing of a new or amended notice of appeal. See Fed. R. App. P. 3(c)(1)(B) (“The notice of appeal must . . . designate the judgment, order, or part thereof being appealed . . .”).
The previously established briefing schedule remains in effect.

LAB/MOATT

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MELISSA AHLMAN; et al.,

No. 20-55668

FILED
JUL 3 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiffs-Appellees,
v.
DON BARNES, in his official capacity as Sheriff of Orange County, California; COUNTY OF ORANGE,

D.C. No. 8:20-cv-00835-JGB-SHK Central District of California, Santa Ana
ORDER

Defendants-Appellants.

Before: GRABER, WARDLAW, and R. NELSON, Circuit Judges. On June 12, 2020, in appeal No. 20-55568, we denied Defendants-
Appellants Orange County and Sheriff Don Barnes’ (collectively “Defendants”) emergency motion to stay the district court’s May 26, 2020 preliminary injunction order, but remanded for the limited purpose of allowing the district court to consider whether changed circumstances justified modifying or dissolving the injunction.
On remand, Defendants moved to dissolve the injunction immediately, arguing that evidence of a declining rate of COVID-19 infections in the Orange County Jail demonstrated that the injunction was no longer necessary. On June 26, 2020, the district court denied Defendants’ motion to dissolve the injunction as

LAB/MOATT

premature and ordered expedited discovery regarding the current conditions in the Orange County Jail.
Defendants challenge the district court’s June 26, 2020 order in the instant appeal. They have filed an emergency motion to stay the district court’s May 26, 2020 preliminary injunction order in light of the evidence of changed circumstances they presented in support of the motion to dissolve the injunction in the district court.
In evaluating whether to issue a stay pending appeal, we review the following factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011) (quoting Nken v. Holder, 16 556 U.S. 418, 434 (2009)).
We review for abuse of discretion the district court’s denial of a motion to dissolve, modify, or clarify a preliminary injunction. See Karnoski v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019). An applicant “seeking modification or dissolution of an injunction bears the burden of establishing that a significant change in facts or law warrants revision or dissolution of the injunction.” Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000).

LAB/MOATT

2

Defendants presented evidence to the district court showing that the infection rate among inmates at the Orange County Jail has decreased since the imposition of the preliminary injunction. The district court concluded, however, that it could not meaningfully evaluate this evidence without first allowing Plaintiffs to conduct the discovery necessary to respond to it. On appeal, Defendants argue that this court should stay the injunction pending this appeal, because the evidence Defendants presented to the district court was sufficient, on its own, to justify dissolving the injunction immediately. We disagree.
This court’s prior order explicitly contemplated that the district court would receive evidentiary submissions from both sides in evaluating whether current circumstances warrant modification of the preliminary injunction. Consistent with our June 12, 2020 order, the district court ordered expedited discovery to be completed by July 15—an order that was necessary only because Defendants had refused to respond voluntarily to Plaintiffs’ discovery requests regarding the current conditions in the jail. It was particularly appropriate for the district court to allow Plaintiffs to conduct expedited discovery before ruling on the motion to dissolve given Defendants’ conflicting statements about their ability to comply with the requirements of the injunction. In light of these circumstances, Defendants have not demonstrated a strong likelihood of success in showing the

LAB/MOATT

3

district court abused its discretion in denying the motion to dissolve the injunction as premature.
We therefore deny Defendants’ emergency motion to stay the preliminary injunction (Docket Entry No. 2).
The previously established briefing schedule remains in effect. IT IS SO ORDERED.

R. NELSON, Circuit Judge, dissenting: The district court ordered expedited discovery in accordance with our
instructions on limited remand to determine whether changed circumstances may warrant the preliminary injunction’s dissolution. This is a positive first step. Nevertheless, the district court based its decision to deny Appellants’ motion on erroneous legal principles. At a minimum, the court should have stayed the injunction in light of Appellants’ new evidence brought forward showing that it is now likely unjustified, and granted the motion for an expedited evidentiary hearing. I dissent because the district court abused its discretion, see Nguyen v. Nissan N. Am., Inc., 932 F.3d 811, 816 (9th Cir. 2019) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” (internal quotation marks omitted)), and I would grant Appellants’ requested relief pending an evidentiary hearing.

LAB/MOATT

4

First, the district court erred in holding that “[e]ven if Defendants have dropped the transmission rate to zero, it is certainly not time yet to draw down preventative measures—unless Defendants consistently implement those steps outlined in the injunctive order, a second spike is likely to occur.” The district court based its conclusion largely on the fact that the country “remains deep in the throes of the outbreak” and COVID-19 spreads “rapidly.” Beyond suggesting that attaining zero transmission may not be enough for the Jail to avoid an Eighth Amendment violation, the district court also maintains the injunction will continue to be necessary until Appellants “consistently implement those steps outlined in the injunctive order” to prevent a second spike in cases. This approach would justify imposing the district court’s sweeping injunction on every correctional facility in the country, regardless of current conditions within those facilities—an unprecedented extension of the judicial power.
Even assuming a constitutional violation here (highly unlikely at this point), enjoining the Jail until it “consistently implements” the district court’s measures exceeds the district court’s authority under the Prison Litigation Reform Act (PLRA) because the injunction extends “further than necessary to correct” the ongoing violation found by the district court. See 18 U.S.C. § 3626(a)(2). By requiring full and consistent compliance with measures well beyond what the CDC’s Interim Guidelines require, the district court’s remedy is not “narrowly

LAB/MOATT

5

tailored” as the PLRA requires, and thus an abuse of discretion. Cf. Graves v. Arpaio, 623 F.3d 1043, 1050-51 (9th Cir. 2010) (finding district court’s ordered relief was narrowly tailored to the requirements of the Eighth Amendment by requiring detainees “be provided food that meets . . . the Department of Agriculture’s Dietary Guidelines”) (emphasis added). This error is only compounded by the district court’s failure to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief” and to “respect the principles of comity” as required by the PLRA. § 3626(a)(2).
Lastly, the district court erred because its initial reason for granting the injunction—that “[r]ates of COVID-19 infection at the Jail are skyrocketing”—is not factually accurate, see Ahlman v. Barnes, No. 20-55568, 2020 WL 3547960 at *6 (9th Cir. June 17, 2020) (order denying stay of preliminary injunction) (R. Nelson, J., dissenting), and is only further undermined by Appellants’ evidence of changed circumstances in a rapidly improving environment. Appellants informed the district court that the Jail had just six active COVID-19 cases (down to just four as of June 24, 2020), with zero transmission, and that these new positive cases are now only coming from new bookings. This information at a minimum justifies staying the injunction until it can be tested through additional discovery and an evidentiary hearing.

LAB/MOATT

6

Because the district court abused its discretion, I respectfully dissent.

LAB/MOATT

7

 
 No. _______
IN THE SUPREME COURT OF THE UNITED STATES
_______________________________________ MELISSA AHLMAN, et al., Plaintiffs-Respondents, v.
DON BARNES and ORANGE COUNTY, CALIFORNIA, Defendants-Applicants.
_______________________________________ To the Honorable Elena Kagan, Associate Justice
of the United States Supreme Court and Circuit Justice for the Ninth Circuit
_______________________________________ EMERGENCY APPLICATION FOR STAY OF INJUNCTIVE
RELIEF PENDING APPEAL OF DENIAL OF STAY APPLICATION IN THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT RELIEF REQUESTED BY FRIDAY, JULY 24, 2020
_______________________________________ LEON J. PAGE, COUNTY COUNSEL
Laura D. Knapp, Supervising Deputy (SBN 162800) D. Kevin Dunn, Senior Deputy (SBN 194604) Rebecca S. Leeds, Senior Deputy (SBN 221930) Kayla N. Watson, Deputy (SBN 286423) 333 West Santa Ana Boulevard, Suite 407 Santa Ana, California 92701 Telephone: (714) 834-3300 Facsimile: (714) 834-2359 Email: kevin.dunn@coco.ocgov.com Attorneys for Defendants-Applicants
i

QUESTION PRESENTED Whether a federal court erred in issuing an injunction against the Orange County Sheriff that exceeds the scope of CDC Guidelines based on findings of objective and subjective deliberate indifference under the Fourteenth and Eighth Amendments of the United States Constitution, where the Sheriff had released inmates, amplified hygiene and safety protocols, distributed PPE and reduced intra-jail transmission to zero?
PARTIES AND RULE 29.6 STATEMENT Applicants-Appellants-Defendants here are the County of Orange and Don Barnes, Sheriff of Orange County, California. Respondents-Plaintiffs here are ten inmates at the Orange County Jails and a class of “medically vulnerable” inmates with representative status.
OPINIONS BELOW The opinions of the Ninth Circuit were unreported but may be found at Ahlman v. Barnes, No. 20-55568, 2020 WL 3547960 and Ahlman v. Barnes, No. 20-55668, Dkt. 4 and reprinted in the Exhibits. The relevant orders of the United States District Court for the Central District of California from Ahlman v. Barnes, No. 8:20-cv-00835 are also unreported and are reprinted in the Exhibits.
ii

JURISDICTION The Ninth Circuit entered an order denying an application for emergency stay and stay pending appeal on May 26, 2020. The Ninth Circuit issued a denial of a second application for stay on June 12, 2020. This Court has jurisdiction under 28 U.S.C. § 1253.
iii

TABLE OF CONTENTS

Page No.

EMERGENCY APPLICATION FOR STAY OF INJUNCTIVE RELIEF PENDING APPEAL OF DENIAL OF STAY APPLICATION IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT .........................................i

QUESTION PRESENTED…….......................................................ii

PARTIES AND RULE 29.6 STATEMENT.....................................ii

JURISDICTION…..……..…………….............................................iii

TABLE OF AUTHORITIES…........................................................vi

OVERVIEW...................................................................................... 1

REASONS FOR GRANTING THE STAY ...................................... 6

A. The Ninth Circuit’s Reasoning in this Case Underscores the Need for Immediate Remedy of the Split in the Circuits...................................................... 6

B. Applicable Standard ............................................................... 8

C. Applicants Here Have Shown A Strong Likelihood of Success on the Merits ...................................... 8

1. The Circuits Are Split as to Injunctions Exceeding CDC Guidelines................................................ 9

2. There Was No Objective Deliberate Indifference under the Fourteenth Amendment as a Matter of Law to Support the Injunction .................................................... 11

a. The District Court’s Flawed Analysis and Its Adoption by the Ninth Circuit .................................... 16

b. The District Court’s Clearly Erroneous Factual Findings and their Adoption by the Ninth Circuit ......................................................... 17

iv

TABLE OF CONTENTS (cont'd)

Page No.

D. APPLICANTS HAVE MADE A STRONG SHOWING OF LIKELIHOOD OF SUCCESS ON THE MERITS AND NEED ONLY SHOW PROBABLE IRREPARABLE HARM .................................. 21

E. THE THIRD AND FOURTH NKEN FACTORS ALSO SUPPORT A STAY HERE DUE TO THE DISTRICT COURT’S MICROMANAGMENT OF JAIL OPERATIONS DURING A PANDEMIC ................... 24

F. CONCLUSION ..................................................................... 25

v

TABLE OF AUTHORITIES

Cases

Page No.

Bell v. Wolfish, 441 U.S. 520 (1979)............................................................... 10

Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014)................................................ 20

Contra Maryland v. King, 567 U.S. 1301 (2012)............................................................. 22

Eat Right Foods Ltd. v. Whole Foods Market, Inc., 880 F.3d 1109 (9th Cir. 2018)................................................ 20

Estelle v. Gamble, 429 U.S. 97 (1976)................................................................. 11

Farmer v. Brennan, 511 U.S. 825 (1994)......................................................... 13, 14

First Amendment Coal. v. U.S. Dep’t of Justice, 878 F.3d 1119 (9th Cir. 2017)................................................ 13

Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014)............................................. 8, 16

Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083 (9th Cir. 2015)................................................ 13

Gordon v. County of Orange, 888 F.3d 1118, (9th Cir. 2018)................................... 12, 13, 14

Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996).................................................... 14

Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011).............................................. 8, 21

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, (9th Cir. 2013)............................................... 13

Nken v. Holder, 556 U.S. 418 (2009)........................................................... 8, 24

vi

TABLE OF AUTHORITIES (cont'd) Page No.
Procunier v. Martinez, 416 U.S. 396 (1974)............................................................... 21
Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996 (9th Cir. 2018).................................................. 17
S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056 (U.S. May 29, 2020)……..23
Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020).......................................passim
Swain v. Junior, No. 20-11622, 2020 WL 3167628 (11th Cir. June 15, 2020)...............................................passim
Valentine v. Collier, 590 U.S. _____ (2020), 2020 WL 1899274 (SD Tex., Apr. 16, 2020) ......................................................... 2
Valentine v. Collier, 140 S. Ct. 1598 (2020) .................................................... 15, 24
Valentine v. Collier, 590 U.S. _____ (2020), 2020 WL 1899274 (SD Tex., Apr. 16, 2020) .......................... 7
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020)...........................................passim
Wilson v. Williams, No. 20-3447, 2020 WL 3056217 ..................................... 15, 16
vii

Applicants-Appellants the County of Orange and Don Barnes, Sheriff of Orange County, California respectfully request for an emergency stay of the injunction issued by the United States District Court for the Central District of California, and the United States Court of Appeals’ denial of a stay of that order.
OVERVIEW The Ninth Circuit declined to stay an injunction issued by the United States District Court for the Central District of California, Judge Jesus G. Bernal presiding, which hamstrings the Sheriff’s Department from an effective and fluid COVID-19 response and which was based on erroneous findings of both objective and subjective deliberate indifference in a population where, at the time, COVID-19 infections were continuing to fall and there remained only a handful of cases all from new arrestees. By the second application there were four (4) inmates with COVID-19, all cases were from new arrestees, not internal jail transmission. Despite this, the United States Court of Appeal for the Ninth Circuit twice endorsed the District Court’s injunction exceeding CDC Guidelines, without modification. The Ninth Circuit’s decision is in direct conflict with the decisions of other United States Circuits that have addressed the issue; it is unsupported by law and does not assist in the efforts to contain COVID19 in the jails. Indeed, such an outlier of law on this issue and the approach taken by other circuits is the Ninth Circuit here that it is best
1

illustrated by this Court denying to lift a stay (as requested here) in the case of Valentine v. Collier, 590 U.S. _____ (2020), 2020 WL 1899274 (SD Tex., Apr. 16, 2020). Simply put: had Petitioners here been within the jurisdiction of the Fifth Circuit, there would be no current federal injunction requiring the Sheriff to exceed CDC Guidelines in his administration of the jails.
The Ninth Circuit's decision hardens the conflict in the Circuits by taking such a diametrically opposite approach from other Circuits that have faced this issue, and indeed, in contravention of orders made by this honorable Court on the same issue. COVID-19 is not quickly departing as a pressing health concern. The issue here will arise repeatedly in the lower courts during the course of this pandemic, which affects every custodial institution in the United States. In the meantime, courts in the conflicting circuits that have taken a position will continue to reach opposite conclusions on similar facts.
Significantly, the Ninth Circuit’s conflicting approach here, when measured against the majority of other Circuits and this Court’s precedents, is also wrong on the law under the Eighth and Fourteenth Amendments to the United States Constitution. It has never been and simply cannot be the constitutional standard in this country that if a Sheriff’s response to a heretofore unknown pandemic will subject him to federal court management by injunction due to objective and subjective deliberate indifference to the well-being of inmates, when he has (1) largely implemented to the extent possible CDC Guidelines across the
2

board, (2) released half of the inmate population to provide social distancing, (3) radically increased cleaning and hygiene, (4) provided staff and inmates with personal protective equipment (“PPE”) and (5) essentially eliminated COVID within the jail population with the exception of new detainees.
There is no doubt that there are significant and dangerous outbreaks in some custodial institutions in this country. The Orange County Jails are not one of them, and the use of a federal injunction to micromanage their daily operations is unsupported in fact or law. Most importantly, however is that the constantly shifting CDC Guidelines must dictate how a Sheriff responds to this pandemic, not a sole Order from a single judge, which requires some measures that may actually cause more physical contact between inmates and staff and hence, worsen the potential infection rate. The Order at issue places staff and inmates at a higher risk by requiring actions not endorsed by the CDC. We respectfully request a stay of the injunction splitting from alignment with the majority of Circuits and this Court’s settled precedent, to allow for the issue to be resolved on the merits below.
STATEMENT On May 26, 2020, the District Court issued a mandatory injunction (ECF 651, the “Order”) against the Orange County Sheriff (“Sheriff”) and the County of Orange (“County” or collectively
1 All references to ECF are to filings in the District Court case (8:20-cv00835-JGB-SHK), while references to Dkt. are to filings in the Court of Appeals case (20-55568).
3

“Defendants”) requiring the Sheriff to implement COVID-19 protocols that (1) exceed CDC Interim Guidelines, (2) irreparably harm the Sheriff’s custodial operations, and (3) exacerbate the health, safety and security risks to both inmates and staff. ECF 65. On May 28, 2020, the Sheriff appealed to the United States Court of Appeals for the Ninth Circuit and Requested an Emergency Stay. ECF 68. On June 12, 2020, the Ninth Circuit denied the stay but sua sponte issued an immediate remand of the matter to the District Court for consideration of further evidence regarding dissolving or modifying the injunction. Dkt. 16 & 191. On June 17, 2020, the Ninth Circuit Court issued a written decision, which included a lengthy and strenuous dissent, which would have granted the requested relief immediately. Dkt. 19-2.
Specifically, the Ninth Circuit Court ordered:
Accordingly, we sua sponte remand the case to the district court for the limited purpose of allowing the parties to present any evidence of changed circumstances that might merit modification or dissolution of the preliminary injunction. In the event such evidence is presented, the district court may consider whether it is appropriate to hold an evidentiary hearing. After reviewing any new evidence, the district court may, in its discretion, modify or dissolve the preliminary injunction as it deems appropriate. Id. at p. 11-12. The dissent noted, “Because the injunction was unwarranted on May 26, and conditions have improved even more significantly, the district court will hopefully take advantage of this opportunity for a redo and lift the injunction.” Dkt. 19-2 at p. 2. To facilitate the Ninth Circuit’s remand instructions, on June 19,
4

2020 Appellants filed an ex parte application with the district court to
dissolve the injunction or in the alternative, to set an evidentiary
hearing on an expedited basis to allow further showing of evidence
supporting dissolving the injunction. ECF 86. The application was
supported by several declarations from Lieutenants and Sergeants at
the Orange County Jails as well as Erin Winger and Dr. Chiang, the
director of Correctional Health Services, attesting to only 6 remaining
COVID cases at the jail, and that such cases were from new arrestees,
not transmission among inmates. ECF 86-3. Moreover, Applicants-
Appellants supplemented this with information on June 24, 2020 that
there remained only four (4) 2 such cases, again, all from new
arrestees. ECF 90. The evidence showed that there is currently zero
transmission of COVID at the Orange County jails. Appellants-
Defendants interposed Appellees’-Plaintiffs’ request for expedited
discovery.
On June 26, 2020, the district court entirely denied any relief for
Appellants and granted entirely Appellees’-Plaintiffs’ request for
2 This number is going to fluctuate day to day and there will always be COVID cases entering the Jail via new bookings as long as COVID exists within the community. The Sheriff has no control over that. No one has any control over that. The point of Appellants-Defendants reporting case numbers to the district court, was not only to show the significant decline in COVID cases but also to show that all of the COVID cases were coming from community spread, new bookings, and not from becoming infected in the Jail. Even if this number were to triple for example, it would not because the person became infected in the Jail, but because they became infected in the community and then were booked into custody for committing a crime.
5

intrusive and expedited discovery, without argument or hearing. ECF 93.
Appellants immediately challenged this Order in the Ninth Circuit. Many of the Order’s mandates are not found in the CDC Interim Guidelines and are infeasible to comply with as it would compromise the safety of inmates and staff at the Jail. AppellantsDefendants have requested—to no avail—that the District Court stay its mandatory injunction Order and have likewise sought relief before the United States Court of Appeals for the Ninth Circuit. Denied, Applicants now seek relief here.
REASONS FOR GRANTING THE STAY
A. The Ninth Circuit’s Reasoning in this Case Underscores the Need for Immediate Remedy of the Split in the Circuits. The judicial role under Article III is confined to deciding the legal
questions before the Court, and not to mandate jail conditions unless required by statute or the Constitution. Veering away from the recent decisions of three other circuits, the Ninth Circuit has adopted an extraordinary interpretation of the Eighth and Fourteenth Amendments. It permits a district court to issue a preliminary injunction, ordering a jail to comply with safety requirements exceeding the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Guidelines”). The court so opined, despite the Sheriff’s implementation
6

of robust safety and hygiene measures prior to Plaintiffs’ motion for a preliminary injunction and issuance of the injunction; measures that resulted in significantly reduced COVID-19 infection rates within the jail.
The decision is erroneous both on the law and the facts as they existed when the district court issued its injunction, and directly at odds with at least three other Circuits that have addressed the issue. Indeed, the decision is at odds with the order issued by this Court regarding this issue during the pandemic. This Court let stand a stay issued by the Fifth Circuit in Valentine v. Collier, 590 U.S. _____ (2020), 2020 WL 1899274 (SD Tex., Apr. 16, 2020). which contained nearly identical facts. This begs the question of whether had the Petitioners here been within the jurisdiction of the Fifth Circuit, would they currently be subject to a federal court injunction exceeding CDC Guidelines. The answer is no, and the answer would be no in at least two other United States appellate circuits.
Between March 1 and May 19, 2020, Applicants voluntarily released approximately 53 percent of the inmates to permit increased social distancing within the jail. This alone should negate any subjective deliberate indifference necessary for an Eighth Amendment violation. Applicants here are likely to prevail on the merits and have demonstrated likelihood of irreparable harm in the form of judicial micromanagement of state executive branch jail affairs and resources, especially where they have proven demonstrably successful.
7

B. Applicable Standard To grant a stay of an injunction pending appeal, the Court must
consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (internal quotation marks omitted).
A district court abuses its discretion when it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks omitted).
C. Applicants Here Have Shown A Strong Likelihood of Success on the Merits The first Nken factor is “whether the stay applicant has made a
strong showing that he is likely to succeed on the merits,” and requires a “minimum quantum of likely success necessary to justify a stay—be it a reasonable probability or fair prospect[.]” Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011) (internal quotation marks omitted).
This factor weighs in favor of staying the district court’s preliminary injunction because the district court based its order on both an erroneous application of the law and clearly erroneous factual findings. Moreover, the district court’s imposition of numerous
8

mandates exceeding the CDC guidelines directly contradicts the sound reasoning of other recent Circuit court decisions. See Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020); Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. 2020).
Whether examined under the Fourteenth Amendment’s objective analysis or Eighth Amendment’s subjective analysis, there simply cannot be a finding of deliberate indifference where the jail voluntarily and effectively responded to the impending crisis. Moreover, as shown by evidence to the district court when it issued the preliminary injunction, the jail had already largely mitigated the infection by implementing its internal safety and hygiene protocols to address COVID-19.
The district court found Respondents-Plaintiffs had demonstrated a likelihood of success on the merits relying on its factual finding that “[r]ates of COVID-19 infection at the Jail are skyrocketing.” Dkt. 19-2 at p. 4. Yet, the evidence at the time showed this was not accurate, and in fact, the infection rate when the injunction issued was already dropping dramatically within the OC Jails. Petitioners have demonstrated a probability of success on the merits.
1. The Circuits Are Split as to Injunctions Exceeding CDC Guidelines
Here, the Ninth Circuit shunned the precedential approach taken by other circuits staying similar injunctions to the extent they imposed obligations beyond the CDC guidelines. See, e.g., Valentine, 956 F.3d at
9

801 (staying injunction that required specific measures that “go[] even further than CDC guidelines”); Swain, 958 F.3d at 1087–88 (staying preliminary injunction where CDC guidelines “formed the basis” of the district court’s required measures); see also Swain v. Junior, No. 2011622, 2020 WL 3167628, at *2 (11th Cir. June 15, 2020) (vacating preliminary injunction even though the scope of the district court’s injunction was “based largely on the CDC’s guidance”).
Instead, here, the Ninth Circuit endorses the legally flawed approach of the district court. The CDC Guidelines are simply interim guidance for custodial institutions and not a constitutional minimum for correctional institutions. See Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (holding that the guidance of outside organizations, including a Department of Justice Task Force, “simply do not establish the constitutional minima” and “are not determinative of the requirements of the Constitution”). The Ninth Circuit effectively rules that the CDC guidelines are a per se violation of the Eighth Amendment during a pandemic. That is not the law.
Illustrating the Circuit split at issue, under the standard followed by the Fifth and Eleventh circuits, most of the mandates imposed by the district court would be stayed in full or in part because they exceed the CDC guidelines. Some conflict with the guidelines. As Petitioners have pointed out, the district court’s order requiring Petitioners to “take the temperature of all class members . . . daily” and to interview “each incarcerated person daily to identify potential COVID‐19 infections,”
10

are nowhere found in the CDC Guidelines. The Guidelines only while the CDC guidelines merely recommend temperature checks for new entrants and “in housing units where COVID-19 cases have been identified” with which the Sheriff complies. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf at 22.2. Another example is found where the CDC guidelines provide that “ideally” at least six feet should be maintained between all individuals, id. at 11, the district court explicitly mandated that Petitioners “provide adequate spacing of six feet or more between incarcerated people” without time, place, or other exceptions or consideration of the physical limitations of the facility. Mandatory daily temperature checks and interviews of the entire jail population increases dangers for both inmates and staff because it significantly increases in-person contact.
2. There Was No Objective Deliberate Indifference under the Fourteenth Amendment as a Matter of Law to Support the Injunction
Prison officials’ “deliberate indifference to serious medical needs of prisoners” has been held to violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A challenge by pretrial detainees to conditions of confinement “arise[s] under the Fourteenth Amendment’s Due Process Clause, rather than under the Eighth Amendment’s Cruel and Unusual
11

Punishment Clause.” Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018) (internal quotation marks omitted).3
Thus, Respondents-Plaintiffs are required to establish that an official show objective deliberate indifference for a Fourteenth Amendment violation. Id. An official must fail to “take reasonable available measures to abate [a substantial] risk [of serious harm], even though a reasonable official in the circumstances would have appreciated the high degree of risk involved.” Id. at 1125. A plaintiff must establish more than negligence but less than subjective intent— something akin to reckless disregard.” Id. (internal quotation marks omitted).
Here, the district court found the jail was objectively deliberately indifferent under the Fourteenth Amendment because it was “aware of the CDC Guidelines and able to implement them but fail[ed] to do so.” The district court also determined that the law required the jail to “fully and consistently” apply the CDC guidelines, as well as its own additional guidelines, to “abate the spread of infection.” ECF 65 at p. 17. This is absolutely and patently false.
The district court abused its discretion in making these clearly erroneous legal determinations. See First Amendment Coal. v. U.S. Dep’t of Justice, 878 F.3d 1119, 1126 (9th Cir. 2017) (a district court
3 The jail population was/is split between pretrial detainees and individuals on a sentence of incarceration. As such, it requires analyses under both the Fourteenth and Eighth Amendments. See Gordon, 888 F.3d at 1124–25.
12

abuses its discretion by applying an “incorrect legal standard”). The objective deliberate indifference standard examines whether a jail took “reasonable available measures to abate [the] risk,” Gordon, 888 F.3d at 1125. It does not inquire as to whether the jail was “aware” of specific measures in the CDC guidelines. Indeed, “aware[ness]” is only a consideration under the subjective deliberate indifference standard—an Eighth Amendment test. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). It is unclear why the district court did not find that voluntarily releasing 53 percent of the detained inmates was reasonable enough.
The district court employed an “incorrect legal standard” to arrive at its conclusion of objective deliberate indifference by the jail, and it abused its discretion in doing so. First Amendment Coal., 878 F.3d at 1126.
A district court also abuses its discretion when it “mischaracterize[s]” the appropriate legal standard. Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083, 1093 (9th Cir. 2015). Here, the district court found that the jail “must fully and consistently” apply the CDC guidelines because it was “able,” to avoid an objective deliberate indifference finding. Yet, “full and consistent” compliance is a higher standard than required by the Constitution, and this standard is not found in precedent. To the contrary, Ninth Circuit precedents provide that “even gross negligence,” see Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013), or a “lack of due care by a state official,” see Gordon, 888 F.3d at 1125, are insufficient to show
13

objective deliberate indifference. Given its reliance on an incorrect application of the objective standard, the district court abused its discretion in determining Petitioners have not demonstrated a likelihood of success on the merits regarding “objective deliberate indifference.”
3. There Was No Subjective Deliberate Indifference Under the Eighth Amendment as a Matter of Law to Support the Injunction
For the sentenced inmates, the Eighth Amendment and its “subjective deliberate indifference” standard applies. Farmer, 511 U.S. at 837. To establish subjective deliberate indifference, a Plaintiff must show an official “knows of and disregards an excessive risk to inmate health or safety[.]” Id. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. (emphasis added). A deliberate indifference finding cannot be based on simple “difference of medical opinion.” The actions must be “in conscious disregard of an excessive risk to [inmate] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (emphasis added).
In direct contrast, the Fifth Circuit held that under the subjective deliberate indifference standard, a district court should not examine “whether the [d]efendants reasonably abated the risk of infection” or “how [the jail’s] policy is being administered.” Valentine, 956 F.3d at 802 (internal quotation marks omitted). Rather, where a prison took steps to mitigate the risk of contagion by increasing internal safety
14

protocols, it did not consciously “disregarded the risk” to inmate health and safety, even if the actions sometimes fell short of the CDC guidelines. Id. at 801–03. And here, the district court’s injunction mandates procedures beyond CDC Guidelines. The Fifth Circuit granted a stay of the district court’s preliminary injunction. Id. at 806. This honorable Court then denied application to vacate the stay. Valentine v. Collier, 140 S. Ct. 1598 (2020).
As found in these recent cases from other Circuits, the fact that there was an outbreak in COVID-19 cases in the Orange County jails is insufficient on its own to justify an injunction. And to demonstrate how far the gap in the circuit split has become, the outbreaks in Valentine and Wilson v. Williams, No. 20-3447, 2020 WL 3056217 were far more substantial (at least one inmate’s death was reported in Valentine, 140 S. Ct. at 1599, and at least six inmate deaths and other inmates on ventilators in Wilson, 2020 WL 3056217 at *2, *12.) By contrast the Orange County Sheriff had 302 of 369 of cases (81 percent) recover from COVID before the injunction was imposed. There has not been a single death in the OC Jails and there have been only three cases requiring hospitalization, all of whom have recovered. How such efforts by the OC Jails can be deemed deliberative indifference is unclear.
The Ninth Circuit’s decision here is also a departure from precedent in the Eleventh Circuit, where a similar stay of a preliminary injunction in the context of protecting prison inmates from COVID-19 was also granted. See Swain, 958 F.3d at 1090 (granting a motion to
15

stay a preliminary injunction because prison’s mitigation efforts “likely do not amount to deliberate indifference”); cf. Wilson v. Williams, No. 20-3447, 2020 WL 3056217, at *7–8 (6th Cir. June 9, 2020) (vacating injunction because the prison “responded reasonably” to the risk by implementing a plan to mitigate the risk, and conditions did not violate the Eighth Amendment). The Eleventh Circuit recently vacated that injunction on the merits, concluding that the district court “abused its discretion in granting the preliminary injunction.” Swain, 2020 WL 3167628, at *13. The same result, by law, should have obtained here.
a. The District Court’s Flawed Analysis and Its Adoption by the Ninth Circuit
Here, the district court relied solely on the evidence that the jail “knew, by way of the CDC Guidelines, that failure to take certain precautionary measures would result in an increase in the spread of infections.” Yet, “subjective deliberate indifference” requires both “knowledge” and a “conscious disregard” of an excessive risk. The district court failed to articulate how the jail then “conscious[ly] disregard[ed]” this knowledge. As such, its determination that the jail acted with “subjective deliberate indifference” was based “on an erroneous view of the law.” Weber, 767 F.3d at 942. As should resulted here if not for the Ninth Circuit’s deviation, as with the jail in Swain, “[n]either the resultant harm of increasing infections nor the impossibility of achieving six-foot social distancing in a jail environment establishes that the defendants acted with subjective recklessness as
16

used in the criminal law.” 2020 WL 3167628, at *6 (internal quotation marks omitted). The district court here abused its discretion by failing to analyze how the jail disregarded the COVID-19 risk. See Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018) (holding a district court abuses its discretion when it “omits a substantial factor” of the analysis).
b. The District Court’s Clearly Erroneous Factual Findings and their Adoption by the Ninth Circuit
Even without this error, the Ninth Circuit affirmed the district court’s abuse of discretion by relying on clearly erroneous factual findings. The district court relied heavily on its belief that “the numbers speak for themselves” to support its deliberate indifference determination. Based on its interpretation of the epidemiological evidence in the record, the district court asserted that the “[r]ates of COVID-19 infection at the Jail are skyrocketing,” the number of confirmed cases is “soaring,” and “the Jail lacks the ability to contain the infection.” ECF 65 at p. 14. To the district court, since the Sheriff “undoubtedly [knew] of the risks posed by COVID-19 infections,” its actions satisfied subjective deliberate indifference.
The district court also mistakenly found that the rate of infection that existed at the time of its order was 12.4%, which it calculated by comparing the total confirmed COVID- 19 cases to an assumed total jail population of 2,826. This analysis is severely flawed. The number provides no information as to how many active COVID-19 cases are in
17

the jail at any given time. Even if the prison had zero active COVID-19 cases at the time the injunction was issued, the district court’s assumed rate of infection would still be 12.4% under this flawed analysis. Put another way, the cumulative number of cases (that have ever passed through the jail will always go up and can never go down. A more accurate and precise approach to calculating this rate would be to compare each week’s rate of new infections to the previous week’s rate, thus showing whether the number of active COVID-19 cases in the jail is increasing or decreasing over time.
While it is true that the rate of COVID-19 infection and the number of active COVID-19 cases did increase from April 22 to May 8, the district court did not issue the injunction until May 26, 2020; and it remains in place today. As the evidence cited in the district court’s own order shows, from May 8—prior to Respondents-Plaintiffs even filing their motion for a preliminary injunction—until the issuance of the injunction, the rate of new infections decreased by over 52 per cent compared to the previous two-and-a-half weeks. In fact, during the week immediately prior to the district court’s injunction, new infections decreased by 76 per cent compared to the previous week. The district court’s finding that “[r]ates of COVID-19 infection at the Jail are skyrocketing,” was thus clearly erroneous. Moreover, since the injunction issued, the number of cases dropped to 35 on June 3, and to 23 cases on June 10. On limited remand the district court was presented with preliminary evidence in the form of sworn declarations
18

that the number had dropped to four (4) cases, and that those were from new arrestees, not transmission within the jail. Nevertheless, the district court denied relief on remand, failed to hold an evidentiary hearing, issued discovery orders, and the Ninth Circuit again refused to intervene to correct the situation. Petitioners were denied an opportunity for a hearing to show both the efforts undertaken and the success of those measures. Further, despite the overwhelming evidence submitted of reduced jail COVID infections, the court refused to consider it.
Likewise, from May 8 until the injunction issued there was a 67 per cent decrease in the number of active COVID-19 cases. Similar to the infection rate, the district court’s finding that the number of cases of COVID-19 was “soaring,” was factually inaccurate because the number of active COVID-19 cases decreased in the two-and-a-half weeks before the injunction issued.
As to the split in the Circuits on this issue, the Eleventh Circuit vacated an injunction notwithstanding that the number of confirmed COVID-19 cases rose from zero at the time Plaintiffs filed their complaint to 163 just three weeks later. Swain, 2020 WL 3167628, at *4. This increase in cases occurred just before the district court entered its preliminary injunction, id., in sharp contrast with the significant decrease in cases here. The district court’s findings are the type of clearly erroneous factual findings that qualify as an abuse of discretion. See, e.g., Eat Right Foods Ltd. v. Whole Foods Market, Inc., 880 F.3d
19

1109, 1120 (9th Cir. 2018) (finding the district court abused its discretion by incorrectly identifying the time period the relevant facts occurred).
Indeed, Applicants-Appellants agree with the district court’s finding that “the numbers speak for themselves;” however, what the numbers tell is a story of prompt and successful intervention in the face of an incoming pandemic. The jail’s robust measures—prior to any injunction—successfully decreased the number of active COVID-19 cases as well as the infection rate. The Sheriff took the unprecedented step of voluntarily lowering the jail population from 5,303 inmates on March 1 to 2,799 inmates on May 19 to increase social distancing between inmates, free up housing space, and provide for quarantine and isolation. The fact that the Sheriff voluntarily released approximately 53 per cent of the jail population to mitigate the spread of COVID-19 vitiates the factual finding that the jail was subjectively deliberately indifferent to the risk of harm to the inmates.
Increased safety and hygiene protocols and a clear improvement in jail conditions simply cannot equate to “conscious disregard” for the welfare of inmates. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (internal quotation marks omitted). Rather the evidence shows that the Sheriff actively undertook voluntary measures to mitigate the risk of harm posed by COVID-19. As described in Valentine, the district court cannot find conscious disregard solely because “the district court might do things differently.” Valentine, 956
20

F.3d at 803. The district court abused its discretion by determining Petitioners
had not demonstrated a likelihood of success on the merits based on a clearly erroneous assertion that the rate of the number of COVID-19 infections was increasing and that the jail had knowingly failed to take necessary safety measures. The Ninth Circuit, in supporting the district court’s factually and legally erroneous ruling, created a split among the Circuits on this issue, during a national pandemic response.
D. APPLICANTS HAVE MADE A STRONG SHOWING OF LIKELIHOOD OF SUCCESS ON THE MERITS AND NEED ONLY SHOW PROBABLE IRREPARABLE HARM There is a “strong likelihood [Applicants here will] succe[ed] on
the merits,” and as such, Applicants need only show that irreparable harm is probable. Leiva-Perez, 640 F.3d at 970. The district court’s injunction prevents Applicants-Defendants from managing the Orange County’s jails without federal judicial supervision. As this Court itself has cautioned, courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. Procunier v. Martinez, 416 U.S. 396, 405 (1974). In direct contrast to this, the district court here delves into micromanagement of jail operations—it mandates the amount of hand soap and number of paper towels available to each inmate. The majority side of the circuit
21

split has avoided federal courts usurping the role of jail management from the elected officials of Orange County, California. Contra Maryland v. King, 567 U.S. 1301, at *3 (2012) (Roberts, C.J., in chambers) (finding irreparable harm where injunction interfered with the state’s “enforcement and public safety interests”); see also Valentine, 956 F.3d at 803 (“The Texas Legislature assigned the prerogatives of prison policy to TDCJ. The district court’s injunction prevents the State from effectuating the Legislature’s choice and hence imposes irreparable injury.”) (internal citation omitted); Swain, 958 F.3d at 1090 (“Absent a stay, the defendants will lose the discretion vested in them under state law to allocate scarce resources among different county operations necessary to fight the pandemic. Through its injunction, the district court has taken charge of many administrative decisions typically left to MDCR officials.”); Swain, 2020 WL 3167628, at *12 (same).
The issue of comity and deference to local executive officials is particularly important during the COVID-19 pandemic. Chief Justice Roberts recently emphasized the need to defer to elected officials as they confront the immense public policy problems created by COVID-19:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas fraught with medical and scientific “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable
22

to the people. S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., in chambers). Here, the district court’s injunction seizes the role of administration of the jail, prevents nimble responses to the virus in an ever-changing landscape, and puts focus on compliance with the order and avoiding contempt, rather than squarely on combatting the contagion. See Valentine, 956 F.3d at 803 (observing that the preliminary injunction issued by the district court “locks in place a set of policies for a crisis that defies fixed approaches”); Swain, 958 F.3d at 1090 (“The injunction hamstrings MDCR officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic. They cannot respond to the rapidly evolving circumstances on the ground without first seeking a permission slip from the district court. Such a prohibition amounts to an irreparable harm.”) (internal quotation marks and citation omitted)). The Ninth Circuit, in countenancing this injunction clashes with this Court’s own guidance regarding the deference owed to jail officials. Moreover, even if the evidence was conflicting below, it does not justify judicial micromanagement, as the other side of the circuit split have properly found. See Swain, 2020 WL 3167628, at *6, *11 (vacating injunction despite conflicting evidence whether the jail was complying with its stated protocols); see also Valentine, 140 S. Ct. at 1600 n.2 (statement of Sotomayor, J.) (agreeing with denial of application to
23

vacate stay while noting that the prison had “regularly fail[ed] to comply with standards far below” the CDC guidelines, despite its representation to the district court that it “updated [its] policy periodically in response to the ever-evolving CDC guidelines,” Valentine, 956 F.3d at 805 n.2).
The district court’s injunction causes irreparable harm. It requires the Sheriff to allocate public resources in a specific manner, without regard to the specific institutional needs and potentially draws those resources away from other safety measures that could be implemented to better effect. prisoners in other jails. Those expenditures and their effects cannot be recovered. See Swain, 958 F.3d at 1090. Such harm is necessarily irreparable. Id.
E. THE THIRD AND FOURTH NKEN FACTORS ALSO SUPPORT A STAY HERE DUE TO THE DISTRICT COURT’S MICROMANAGMENT OF JAIL OPERATIONS DURING A PANDEMIC The third and fourth Nken factors––harm to the party opposing
the injunction and the public interest––“merge when the Government is the opposing party.” 556 U.S. at 435. The elected Sheriff, and by extension the voters of Orange County, are harmed when the judiciary usurps its authority to manage the jails, especially during a global pandemic. Moreover, the public is undoubtedly interested in the proper management of jails. The fourth and fifth Nken factors here also weigh in favor of a stay. See Valentine, 956 F.3d at 804; Swain, 958 F.3d at 1090–91.
24

F. CONCLUSION Applicants-Defendants respectfully ask for a stay of the district
court’s May 26, 2020 injunction to preserve the status quo and allow the Sheriff to continue to nimbly respond to this virus while the issue is resolved on the merits below.
Respectfully submitted, LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP,
SUPERVISING DEPUTY D. KEVIN DUNN, SENIOR DEPUTY REBECCA S. LEEDS,
SENIOR DEPUTY KAYLA N. WATSON, DEPUTY Dated: July 21, 2020 By: __/S/______________________________
D. Kevin Dunn, Senior Deputy Attorneys for Applicants-Defendants DON BARNES and ORANGE COUNTY, CALIFORNIA
25

 
 No. 20A19

IN THE
Supreme Court of the United States
DON BARNES, SHERIFF, ORANGE COUNTY, CALIFORNIA, et al.,
Applicants. v.
MELISSA AHLMAN, et al., Respondents.

RESPONSE IN OPPOSITION TO EMERGENCY APPLICATION FOR STAY

Cassandra Stubbs AMERICAN CIVIL LIBERTIES UNION FOUNDATION 201 W. Main St., Suite 402 Durham, NC 27701 (919) 682-5659
David Cole Somil Trivedi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 (202) 549-2611
Paul Hoffman UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000, Irvine, CA 92687 (949) 824-0066

David M. Zionts Counsel of Record
Stacey K. Grigsby Amia Trigg Steven Winkelman Eric Chung Laura E. Dolbow COVINGTON & BURLING LLP One CityCenter 850 Tenth St., NW Washington, DC 20001 (202) 662-6000 dzionts@cov.com
Mitchell Kamin Aaron Lewis COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, CA 90067-4643 (424) 332-4800

(Additional Counsel Listed on Inside Cover)

Zoe Brennan-Krohn AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm St. San Francisco, CA 94111 (415) 343-0769
Carl Takei AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004

Peter Eliasberg AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St. Los Angeles, CA 90017 (213) 977-9500
John Washington SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 (310) 399-7040

July 30, 2020

Counsel for Respondents

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................... ii INTRODUCTION .......................................................................................................... 1 STATEMENT................................................................................................................ 5 ARGUMENT ................................................................................................................ 12
I. The Court Is Unlikely to Grant Certiorari. .................................................. 13 A. There is no split in the Circuits. ....................................................... 15 B. This case would be an inappropriate vehicle to address any asserted split in the Circuits. ............................................................................... 20
II. The Court Is Unlikely to Reverse the Lower Court’s Decisions. ................ 23 A. The district court correctly stated and appropriately applied the objective deliberate indifference standard. ........................................... 23 B. The district court correctly stated and appropriately applied the subjective deliberate indifference standard. ......................................... 26 C. The district court correctly found that the Jail officials were aware that COVID-19 presented a substantial risk of serious harm to the Detainee Class. ....................................................................................... 28 D. The district court did not abuse its discretion in setting the scope of its preliminary injunction. ..................................................................... 33
III. Applicants Have Not Demonstrated that Denial of a Stay Will Cause Irreparable Harm, Yet Granting a Stay Would Significantly Harm the Detainee Class................................................................................................... 35 IV. The Balance of Hardships and Public Interest Favor Denial of a Stay. ... 41 CONCLUSION............................................................................................................. 42
i

TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Bessemer City, 470 U.S. 564 (1985) ........................................................................................ 28, 29, 33
Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013 (1993) ..................................................................................................13
Farmer v. Brennan, 511 U.S. 825 (1994) .................................................................................. 14, 23, 26, 27
Gordon v. Cty. of Orange, 888 F.3d 1118 (9th Cir. 2018) .............................................................................. 23, 24
Graves v. Barnes, 405 U.S. 1201 (1972) ..................................................................................................13
Heckler v. Redbud Hosp. Dist., 473 U.S. 1308 (1985) ..................................................................................................13
Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) ......................................................................................38
Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062 (9th Cir. 2013) ....................................................................................26
Moore v. Illinois, 423 U.S. 938 (1975) ....................................................................................................15
Overton v. Ohio, 534 U.S. 982 (2001) ....................................................................................................15
Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319 (1994) .............................................................................................. 2, 13
Rostker v. Goldberg, 448 U.S. 1306 (1980) ..................................................................................................13
Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) .................................................................................... 2, 3, 12, 38
Shorter v. Baca, 895 F.3d 1176 (9th Cir. 2018) ....................................................................................23
ii

Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) .......................................................................... passim
Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020) ..................................................................................16
Swain v. Junior, No. 1:20-CV-21457-KMW, 2020 WL 2078580 (S.D. Fla. Apr. 29, 2020) ..................19
Taylor v. Yee, 136 S. Ct. 929 (2016) ..................................................................................................22
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) ................................................................................................35
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) .............................................................................. passim
Valentine v. Collier, No. 4:20-cv-1115, 2020 WL 1916883 (S.D. Tex. Apr. 20, 2020)................................19
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) .................................................................... 15, 16, 18, 19
Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020)...........................16
Statutes and Rules
Fed. R. Civ. Proc. 52 ........................................................................................................28
Other Authorities
CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html....................................................... 34
JUDICIAL BRANCH OF CALIFORNIA, Judicial Council Adopts New Rules to Lower Jail Population, Suspend Evictions and Foreclosures (Apr. 6, 2020), https://newsroom.courts.ca.gov/news/judicial-counciladopts-new-rules-to-lower-jail-population-suspend-evictions-andforeclosures ................................................................................................................. 24
iii

ORANGE COUNTY SHERIFF’S DEPARTMEMNT, COVID-19 in OC Jails, https://www.ocsd.org/documents/sheriff/COVIDStats7.24.20.pdf.................38
iv

INTRODUCTION There is a COVID-19 crisis in the Orange County Jail (“the Jail”). Prior to the district court’s injunction, Applicants were shuffling inmates around the Jail in defiance of Centers for Disease Control and Prevention (“CDC”) Guidelines and leaving detainees packed into dayrooms sharing the same air and bathrooms without social distancing; symptomatic individuals were not being separated from asymptomatic ones, and at least one COVID-positive detainee was housed with individuals who had not tested positive; Applicants provided watered-down disinfectant and make-shift masks made from blood-stained sheets; and symptomatic detainees were being denied tests. As the district court found, “compliance [with the CDC Guidelines] has been piecemeal and inadequate.” ECF No. 65 at 14.1 Perhaps unsurprisingly, 369 detainees had tested positive as of the time the preliminary injunction was issued, reflecting “an increase of more than 300 confirmed cases in a little over a month.” 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 4. In granting the preliminary injunction, the district court denied a request to order the release of detainees and limited its relief to measures that Applicants’ declarant had testified the Jail had “already implemented.” Balicki Decl., ECF No. 44-10 ¶ 2. The facility’s testing failures mean that any figures on COVID-19 infections are understated. Reported cases decreased for a time after entry of the injunction,
1 All references to ECF are citations to the district court docket (Case No. 8:20-cv00835-JGB-SHK). All references to 9th Cir. Dkt. are citations to the Ninth Circuit dockets (Appeal No. 20-55568 and Appeal No. 20-55668).
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but the crisis has far from abated. From June 24 to July 24, the number of positive cases reported as “Medical Isolation (Symptomatic)” in the Jail increased by 1400%. See infra Part III at 38–41. Three days after filing their Application to Justice Kagan, Applicants informed the district court of 40 new confirmed positive tests, including 15 cases of likely transmission from a current detainee housed in the general population while actively infected with COVID-19. Defs.’ 7/24/20 Compliance Report, ECF No. 111 at 2. Yet against this backdrop, and after multiple requests for a stay in the district court and court of appeals have been denied, Applicants ask for the extraordinary relief of a stay from this Court.
Their Application is a case study in why this Court gives “considerable deference” to a district court’s decision to deny a stay, Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316 (1983) (Blackmun, J., in chambers), and why there is an “especially heavy burden” when, as here, the “matter is pending before the Court of Appeals” and “the Court of Appeals denied” a stay, Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers). The very premise of the Application—that Applicants have “reduced intra-jail transmission to zero,” Application at ii (Question Presented)—is false and contradicted by Applicants’ own disclosures last week. The core legal issue they purport to present—whether the injunction should have “exceed[ed] the scope of CDC Guidelines,” id.—is a curious basis for review of a decision that was based on a finding that Applicants “are not complying meaningfully with the CDC Guidelines,” and an injunction that tracks those Guidelines. ECF No. 65 at 16 (emphasis added). And Applicants do not even question the district court’s
2

conclusion that plaintiffs are likely to succeed under the Americans with Disability Act and the Rehabilitation Act, a determination that independently supports the preliminary injunction granted here and makes this case an inappropriate vehicle to consider the constitutional issues on which Applicants seek review.
Neither do Applicants mention, much less refute, the court of appeals’ reason for finding no irreparable harm from the injunction: that Applicants have “represented not only that [they] were willing and able to implement each of the specific measures requested by Plaintiffs (and later incorporated into the injunction), but that they had in fact already implemented them.” 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 6. To be sure, Plaintiffs do not agree that Applicants have sufficiently implemented these measures. But Applicants are either “already willingly complying with the requirements of the injunction” and so “will suffer no irreparable injury from it,” or else “they misrepresented the nature of their response to COVID-19 in the district court, in which case they are not entitled to discretionary relief.” Id. at 7. Applicants’ representations were thus a “sufficient reason” for the court of appeals to deny a stay. Id. at 8. In this Court as well, Applicants’ “fail[ure] to show irreparable injury from the denial of the stay” means that likelihood of success on the merits “need not be considered.” Ruckelshaus, 463 U.S. at 1317 (Blackmun, J., in chambers). And while Applicants fail to demonstrate any irreparable harm from the injunction, the risk of serious illness and even death in the absence of an injunction is indisputably irreparable.
Applicants also neglect to mention, much less satisfy, the threshold requirement for a stay from this Court: establishing that a grant of certiorari is
3

probable. They have failed to demonstrate any basis for a grant of certiorari to review what is, after all, merely a preliminary injunction in a prison-conditions case applying well-settled law to the particular facts presented by a single facility. District courts enter such injunctions frequently across the country, and this Court rarely intervenes. Applicants have shown no basis to depart from that practice here. They fail to identify any split in the Circuits on any legal question. Their real quarrel is with the district court’s application of settled legal standards to the facts of this case, and even its credibility determinations. And as noted, Applicants do not even challenge the district court’s determinations on the statutory grounds that independently support the injunction. A grant of certiorari is exceedingly unlikely, yet another reason to deny the stay.
Applicants’ lack of urgency in the proceedings below only underscores that the extraordinary relief of a stay should not be granted. While pursuing this relief, Applicants are asking the court of appeals for a second extension of time for their opening brief, pointing to the ongoing discovery in the district court. See 9th Cir. Appeal No. 20-55568, Dkt. No. 31 at 5. At bottom, Applicants’ stay request seeks to shortcut discovery before the district court and normal appellate review by the Ninth Circuit.
Should circumstances improve at the Jail, the courthouse doors remain open to Applicants. The district court has not ruled out granting relief from the injunction in appropriate circumstances, finding only that Applicants’ rapid request to dissolve the injunction was “premature.” ECF No. 93 at 2. Instead of presenting a rosy spin on the facts to this Court, Applicants are free to present
4

actual evidence in the district court. But the extraordinary relief they seek from this Court would quite literally endanger the health and wellbeing of everyone who cycles in and out of the Orange County Jail. The Application should be denied.
STATEMENT 1. As the Court is well aware, the COVID-19 pandemic is the most serious public health crisis in generations. It is especially dangerous in jails, whose population includes pretrial detainees and where inmate turnover is more frequent than in prisons. On April 30, 2020, Plaintiffs (“the Detainee Class”) filed a complaint on behalf of two classes of individuals alleging that the confinement conditions in the Jail violated the Eighth Amendment, the Fourteenth Amendment,2 the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act. ECF No. 1. The Detainee Class sought judicial relief to release the most medically-vulnerable people in the Jail and to adopt measures to mitigate the risk of COVID-19 transmission in the Jail. The Detainee Class presented evidence that Applicants failed to take reasonable prevention measures recommended by the CDC and other public health experts. Applicants had failed to implement appropriate social distancing measures, disregarding the CDC’s recommendations. Dayrooms were crowded. See Bonilla Decl., ECF No. 41-20 at ¶ 7. Detainees stood shoulder-to-shoulder to use the Jail’s telephones, and detainees were required to clean the bedding of detainees who tested positive for COVID-19. See Maldonado Decl., ECF No. 79-15 at ¶ 15; Ahlman 5/15/20 Decl., ECF No. 79-33 at ¶ 3. Applicants also failed to implement quarantine and
2 Plaintiffs’ Eighth Amendment claims apply to incarcerated individuals serving a sentence, while the Fourteenth Amendment claims apply to pretrial detainees.
5

isolation protocols in accordance with CDC Guidelines. See Wagner Decl., ECF No. 791 at ¶ 5. Instead, symptomatic individuals were not medically isolated. In one case, after a detainee tested positive for COVID-19, he was housed with those who had not tested positive, sharing “the same showers, phones, and pass[ing] the same newspaper around cell to cell.” Miranda Decl., ECF No. 41-14 at ¶ 25. Others that were infected and/or symptomatic were allowed to “comingle . . . in the common day room, playing chess and cards,” with no regard for their ability to infect others. See Ramirez Decl., ECF No. 41-10 at ¶¶ 20, 22, 24.
Applicants further failed to provide adequate cleaning supplies, personal hygiene supplies, and personal protective equipment to curtail the spread of the virus. Applicants provided “watered down” disinfectant and “dirty rags” to detainees to clean common spaces. See Farias Decl., ECF No. 41-17 at ¶ 13; Ramirez Decl., ECF No. 4110 at ¶ 14; Bonilla Decl., ECF No. 41-20 at ¶ 16. Frequently-touched surfaces such as telephones and table tops were not cleaned between uses. See Baguiao Decl. ECF No. 41-26 at ¶ 14; Farias Decl., ECF No. 41-17 at ¶ 14. While makeshift “masks” were ostensibly provided, they were fashioned from t-shirts, towels, or “soiled sheets, with stains of feces and blood.” Bonilla Decl., ECF No. 41-10 at ¶¶ 10, 11, 14–17.
Applicants also failed to implement an adequate testing regimen at the Jail. Multiple detainees testified to experiencing COVID-19 symptoms, requesting tests, and being denied or ignored. See Ramirez Decl., ECF No. 41-10 at ¶ 21; Farias Decl., ECF No. 41-17 at ¶ 9.
2. Based on these facts, the Detainee Class filed an application for a temporary restraining order and a motion for a preliminary injunction to implement protections
6

against COVID-19 transmission. ECF No. 41. Applicants argued that no preliminary relief was necessary because they had “already . . . implemented” all of the measures that the Detainee Class sought in the complaint, except for releasing certain detainees. ECF No. 44-1 at 9.
On May 26, 2020, the district court entered a preliminary injunction after oral argument and weighing the evidence submitted by the parties. ECF No. 65. The district court found that the “risk of harm within the Jail is undeniably high,” that Applicants were not “complying meaningfully with the CDC Guidelines,” and the Detainee Class demonstrated a likelihood of success on their claims. Id. at 14, 16, 18. The district court concluded that “an institution that is aware of the CDC Guidelines and able to implement them but fails to do so demonstrates that it is unwilling to do what it can to abate the risk of the spread of infection.” Id. at 17. At the same time, the district court explained that “the CDC Guidance ‘is not a statute, nor is it a mandate,’” and “do[es] not contemplate hundreds of infections within the population.” Id. at 16–17. “Accordingly,” the district court reasoned, “the CDC Guidelines represent the floor, not the ceiling, of an adequate response to COVID‐19 at the Jail, with at least 369 COVID‐19 cases.” Id. at 17. The district court found the equities weighed in the Detainee Class’s favor.
Based on these findings, the district court therefore ordered Applicants to implement certain measures and protocols to bring the Jail into compliance with the CDC Guidelines, and to better ensure the health and safety of the detainees it houses. Id. at 20–21. For example, the preliminary injunction requires Applicants to “provide adequate spacing of six feet or more between incarcerated people”; to “ensure that all
7

incarcerated people have access to hand sanitizer containing at least 60% alcohol”; and to conduct daily health assessments of incarcerated people “to identify potential COVID-19 infections.” Id. The preliminary injunction also requires Jail staff to wear protective equipment and wash their hands, use hand sanitizer, or change their gloves both before and after interacting with detainees or touching common surfaces. Id. at 21. These measures implement the CDC Guidelines in a way tailored to the specific circumstances and conditions in the Jail, as the Guidelines expressly contemplate. See infra Part II.D. The district court denied, however, a request to release all medically vulnerable and disabled individuals, finding that the Detainee Class had not “met their burden to prove that the balance of equities tilts in favor” of that relief. Id. at 20.
3. Applicants then filed an ex parte application to stay the preliminary injunction pending appeal. The district court denied a stay on June 2, 2020, holding that Applicants had not demonstrated they were likely to succeed on appeal, and had submitted no evidence of irreparable injury from the injunction. ECF No. 72. The district court noted that the preliminary injunction order did not require Applicants to implement anything beyond what was requested in the complaint—which Applicants argued they had already implemented prior to the preliminary injunction motion. See ECF No. 44-1 at 9. The district court explained that Applicants “cannot claim to have already implemented the requested mitigation measures and also claim that implementation will cause irreparable injury.” ECF No. 72 at 2.
Applicants then filed an appeal in the Ninth Circuit and moved for both an Emergency Stay of Injunction and a Stay of Injunction Pending Appeal. The Ninth Circuit denied both motions. In denying the motion for a stay of injunction pending
8

appeal, the Ninth Circuit held that Applicants “failed to carry their burden of establishing that a stay of the preliminary injunction is appropriate.” 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 11.
In reaching this conclusion, the Ninth Circuit underscored that “a showing of irreparable injury is an absolute prerequisite” when seeking a stay of injunctive relief, id. at 6, and found that Applicants failed to demonstrate irreparable harm caused by the injunction when they had previously represented to the district court that they were willingly complying with the requirements of the injunction. See id. at 7.
Although the Ninth Circuit explained that “the absence of irreparable harm is alone sufficient reason to deny” Applicants’ motion for a stay, id. at 8, it further concluded that Applicants were not likely to demonstrate that the district court abused its discretion in issuing the injunction, id. at 9. The appeals court explained that the district court’s factual findings are reviewed for clear error, and the facts “portrayed a response that fell well short of the CDC guidelines and resulted in an explosion of COVID-19 cases in the jail.” Id. The court of appeals ordered a remand, however, “for the limited purpose of allowing the district court to consider whether changed circumstances justify modifying or dissolving the injunction.” Id. at 1; see id. at 11–12. Judge Nelson dissented, concluding that the district court misapplied the law and clearly erred in assessing the facts, which in his view showed that the Applicants had taken protective measures that had sufficiently reduced the infection rate within the Jail. 9th Cir. Appeal No. 20-55568, Dkt No. 19-2 at 1.
4. On remand, the Detainee Class moved for expedited discovery because Applicants repeatedly refused to provide information on their compliance with the
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preliminary injunction. ECF No. 83. One day after the Detainee Class moved for expedited discovery, Applicants filed an ex parte application requesting that the district court immediately dissolve the preliminary injunction. ECF No. 86.
The district court granted the motion for expedited discovery and denied Applicants’ motion. ECF No. 93 at 3. The district court explained that before it could consider whether circumstances had changed to warrant dissolution of the injunction, the Detainee Class must have the opportunity to evaluate Applicants’ evidence. Id. at 2. “Because it would serve both parties’ interests to quickly determine the actual state of the outbreak,” the district court reasoned, “there is good cause for ordering expedited discovery.” Id. at 2. The district court further noted the oddity of Applicants requesting to dissolve the preliminary injunction even as they (1) “insist[] that they are going above and beyond what is necessary to stop the spread of infection—including implementing all the measures that the court ordered with the injunction,” and (2) “refuse to provide the [Detainee Class] with any information regarding their compliance with the” preliminary injunction. Id. at 3.
Applicants filed a second appeal with the Ninth Circuit, Appeal No. 20-55668, and filed an emergency motion for a stay of the preliminary injunction in light of the evidence of changed circumstances they presented in support of their application to dissolve the injunction in the district court. 9th Cir. Appeal No. 20-55668, Dkt. No. 21. The Ninth Circuit denied the motion on July 3, 2020. The Ninth Circuit agreed with the district court that the one-sided evidence of changed circumstances proffered by Applicants did not compel dissolving the injunction immediately, without further discovery. The Ninth Circuit explained that its prior order “explicitly contemplated
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that the district court would receive evidentiary submissions from both sides in evaluating whether current circumstances warrant modification of the preliminary injunction.” 9th Cir. Appeal No. 20-55668, Dkt. No. 4 at 3 (emphasis in original). The district court’s order of expedited discovery was consistent with the remand and “necessary only because Defendants had refused to respond voluntarily to Plaintiffs’ discovery requests regarding the current conditions in the jail.” Id. Moreover, it was “particularly appropriate” for the district court to allow the Detainee Class to conduct expedited discovery before ruling on the motion to dissolve the preliminary injunction, “given Defendants’ conflicting statements about their ability to comply with the requirements of the injunction.” Id. Therefore, the Ninth Circuit concluded Applicants had not demonstrated a likelihood of success in showing the district court abused its discretion in denying the motion to dissolve the injunction as premature. Judge Nelson again dissented, stating that the district court should have stayed the preliminary injunction pending expedited discovery because of evidence of decreased transmission of COVID-19 within the Jail. Id. at 4–7.
5. Meanwhile, COVID-19 has continued rapidly spreading throughout southern California and Orange County, and the Jail is no exception. As of July 24, 2020, there were a record high 56 symptomatic individuals in medical isolation in the Jail (21 in the Intake Release Center and 35 in Theo Lacy Facility),3 an increase of 1400% between June 24, 2020 and July 24, 2020, indicating exponential growth while Applicants were supposedly bringing things under control. See infra Part III at 38–41.
3 The Jail houses inmates across four facilities: Theo Lacy, the Men’s Central Jail, the Women’s Central Jail, and the Intake and Release Center. ECF No. 65 at 4.
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Even these numbers are likely an underestimate of the true extent of the disease in the Jail, because Applicants have never attempted or even claimed to test everyone, regardless of symptoms. See, e.g., ECF No. 106 at 2 (reporting total cumulative tests for detainees since March and current tests, both far below the cumulative and current population numbers). The risk of COVID-19 in the Jail includes the increased potential of new infections from the outside community, using both staff and newlybooked detainees as vectors (especially considering the fact that staff are not required to be tested, as Commander Balicki recently confirmed in a deposition). Failures to take adequate precautionary measures at the Jail have allowed infected individuals to mingle with the Jail’s general population, including in close quarters while in transit and at court. This in turn has led to greater spread of the virus. Defs.’ 7/24/20 Compliance Report, ECF No. 111 at 2–3; Defs.’ 7/10/20 Compliance Report, ECF No. 106 at 2–3. All of these developments demonstrate the persistent likelihood of reseeding the Jail outbreak from the Orange County community, the ongoing risk of harm, and the continued need for compliance with CDC Guidelines and the preliminary injunction order.
ARGUMENT The Court or a single Justice “will grant a stay pending appeal only under extraordinary circumstances, and a district court’s conclusion that a stay is unwarranted is entitled to considerable deference.” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316 (1983) (Blackmun, J., in chambers). Where, as here, the “matter is pending before the Court of Appeals [on the merits of the preliminary injunction],” and “the Court of Appeals denied [the applicant’s] motion for a stay,” the “applicant has an
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especially heavy burden.” Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers); see also Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013, 1014 (1993) (O’Connor, J., concurring in denial of stay application) (“When a matter is pending before a court of appeals, it long has been the practice of members of this Court to grant stay applications only upon the weightiest considerations.” (citations omitted)); Heckler v. Redbud Hosp. Dist., 473 U.S. 1308, 1312 (1985) (Rehnquist, J., in chambers) (“[A] stay application to a Circuit Justice on a matter before a court of appeals is rarely granted.” (citations omitted)).
To establish the propriety of a stay, the applicant must make a four-part showing: (1) “a ‘reasonable probability’ that four Justices will consider the issue sufficiently meritorious to grant certiorari”; (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous”; (3) “a demonstration that irreparable harm is likely to result from the denial of a stay”; and (4) “in a close case it may be appropriate to ‘balance the equities’—to explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers).
Applicants do not even cite or address the appropriate standard, nor do they acknowledge the heavy burden they bear. They fail to satisfy any of the requirements for a stay.
I. The Court Is Unlikely to Grant Certiorari. A “reasonable probability” that certiorari will be granted is a “threshold
consideration” that is “consistently required” for the issuance of a stay. Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in chambers). Yet Applicants do not
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even mention this requirement, much less satisfy it. For a host of reasons, the Court is unlikely to grant certiorari. There is no split in the circuits, and this case does not present an “important federal question” that calls for Supreme Court review. Sup. Ct. R. 10(a). The decision below did nothing more than apply well-established precedent to the particular facts and circumstances of this case. The principal question at issue here—whether Applicants were deliberately indifferent to a substantial risk of harm presented by COVID-19—is a fundamentally fact-bound question. Indeed, as this Court has recognized, deliberate indifference “is a question of fact subject to demonstration in the usual ways.” Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Applicants’ stay request reflects little more than their narrow disagreement with the district court’s factual findings and amounts to a request for mere error correction. See, e.g., Application at 7 (“The decision is erroneous both on the law and the facts as they existed when the district court issued its injunction . . . .”); id. at 17 (“[T]he Ninth Circuit affirmed the district court’s abuse of discretion by relying on clearly erroneous factual findings.”); id. at 19 (district court’s finding “was factually inaccurate”). The district court’s factual findings turned on its determination that Plaintiffs’ evidence and testimony was more credible and entitled to more weight than Applicants’ competing evidence. See, e.g., ECF No. 65 at 14 n.10 (“To the extent that the OCSD officer testimony submitted by Defendants conflicts with the inmate testimony submitted by Plaintiffs, the Court finds the inmate testimony more credible.”); see also 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 4 (“The district court recognized that Plaintiffs’ evidence contradicted the declarations submitted by Commander Balicki and other OCSD officials. It resolved this factual conflict in favor
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of Plaintiffs, concluding that the detailed inmate declarations were more credible than the brief and general declarations of the OCSD officers . . . .”).
This Court does not grant certiorari to review credibility determinations. See Moore v. Illinois, 423 U.S. 938, 939 (1975) (Stewart, J., separate statement) (“[W]e cannot from this vantage point intelligently reassess the state courts’ determination of questions of credibility.”). Nor does it “act as a court of simple error correction.” Overton v. Ohio, 534 U.S. 982 (2001) (Breyer, J., statement respecting denial of certiorari). It is thus exceedingly unlikely that the Court would grant certiorari to review the district court’s findings of fact and determinations of credibility.
A. There is no split in the Circuits. Applicants attempt to manufacture a circuit split, but there is none. Applicants contend that the Ninth Circuit’s decisions here conflict with the decisions of three other circuits—the Fifth, Sixth, and Eleventh—which addressed deliberate indifference claims based on the ongoing COVID-19 pandemic. Application at 6, 14–16. See Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020); Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020); Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). According to Applicants, these circuits each struck down injunctions that compelled officials to adopt protective measures in detention facilities above and beyond those required by CDC Guidelines, whereas the decisions below purportedly imposed requirements “exceeding CDC Guidelines.” Application at 9–11. No such conflict exists—these cases all applied the same legal standards, and merely reflect the unremarkable fact that conditions in different jails are different, responses to the pandemic in different jails have been different, and some deliberate indifference claims are stronger than others.
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First, Applicants’ key premise is wrong: the district court did not impose requirements exceeding the CDC Guidelines, and the very examples Applicants provide comport with those Guidelines. See infra Part II.D. Indeed, the critical basis of the district court’s decision was that Applicants were not complying with the CDC Guidelines, and it specifically framed its injunction as “Mandating Compliance with CDC Guidelines.” ECF No. 65 at 16, 19.
Second, although Applicants insist that these circuits stayed or vacated preliminary injunctions “because they exceed the CDC guidelines,” Application at 10 (emphasis added), the decisions do not say that.
In Swain, for example, there is no indication that the Eleventh Circuit vacated the district court’s injunction on the basis that it imposed requirements exceeding CDC Guidelines, or that the court even believed that the injunction imposed requirements in excess of those Guidelines. To the contrary, the Eleventh Circuit noted that the CDC’s Guidelines “‘formed the basis’ of [the] requirements” imposed by the district court. Swain, 958 F.3d at 1087; see also Swain v. Junior, 961 F.3d 1276, 1281 (11th Cir. 2020) (“[T]he district court entered a 14-day TRO, based largely on the CDC’s guidance for correctional facilities.” (emphasis added)). In Wilson, there is likewise no indication that the Sixth Circuit either believed that the district court’s injunction imposed requirements exceeding CDC Guidelines, or that doing so would be a basis for vacatur. See generally Wilson, 961 F.3d 829. Nor could that have been the basis for the decision, as the district court’s order only “provide[d] for mitigation efforts in line with CDC guidelines.” Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *4 (N.D. Ohio Apr. 22, 2020), vacated, 961 F.3d 829 (6th Cir. 2020). And while the
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Fifth Circuit in Valentine noted that “[s]ome of the conduct required of Defendants under the injunction goes even further than CDC guidelines,” 956 F.3d at 801, the court of appeals determined that officials were largely complying with CDC Guidelines, and that their failure to take additional measures, by itself, was insufficient to demonstrate deliberate indifference. See id. at 802. By contrast, the district court here determined that the Jail was not complying with CDC Guidelines.
Third, the outcomes in Swain, Valentine, and Wilson rested on facts and circumstances materially different from those present here. At a high level of generality, each case involved claims of deliberate indifference in responding to risks presented by COVID-19, and in each case a court of appeals considered whether to stay an injunction. But the similarities stop there.
In Swain and Valentine, for instance, the Eleventh and Fifth Circuits respectively stayed the district courts’ injunctions largely for reasons not present here. Both cases were decided, at least in part, on the basis of a failure by the Plaintiffs to exhaust grievance procedures or prove unavailability of those procedures, as required by the PLRA. See Valentine, 956 F.3d at 804–05; Swain, 958 F.3d at 1091-92. No such issue is present here. 9th Cir. Appeal No. 20-55568 Dkt. No. 19-1 at 9 n.6 (“Defendants have not challenged the district court’s finding that Plaintiffs likely satisfied the PLRA’s exhaustion requirement.”). Both also found legal error in the lower court’s failure to appropriately distinguish between objective and subjective indifference, Valentine, 956 F.3d at 802; Swain, 958 F.3d at 1089, whereas the court here made precisely that distinction. See infra Parts II.A, II.B.
Similarly, although the Wilson court ultimately vacated the district court’s 17

order, it did so only after a fact-intensive inquiry into the reasonableness of the federal Bureau of Prison’s (“BOP”) response to COVID-19. That inquiry found that the BOP had sufficiently implemented effective measures. The court of appeals in Wilson recognized that an institution’s failure to comply with its protocols may be evidence of deliberate indifference, but found that—unlike in the present case—no such failure was evident there. Wilson, 961 F.3d at 843; see also ECF No. 65 at 14 (“[A]lthough Defendants may have a policy to comply with the CDC Guidelines, actual compliance has been piecemeal and inadequate.”). Here, by contrast, the district court granted the preliminary injunction after a searching, if preliminary, factual inquiry and then declined to maintain its findings until the parties had the opportunity to develop the factual record further through expedited discovery.
More importantly, however, different outcomes under different facts does not remotely mean there is a split of authority on any question of law. Swain, Valentine, and Wilson all applied the same legal standards to different facts and evidentiary records in determining that the government was likely to succeed on the merits. None asserted a rule that conflicts with the court of appeals here; applying the same constitutional standards, each looked at the nature of the facilities in which the plaintiffs were incarcerated, the particularities of COVID-19 spread (or lack thereof) in each facility, the specific measures taken by each facility to protect detainee welfare, and the particular requirements of the injunctions issued by each lower court. For instance, although Applicants assert that the outbreaks in these cases “were far more substantial” than the outbreak in this case, Application at 15, the actual data show otherwise. In Swain, 163 inmates were infected with COVID-19—approximately one-
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third as many as in the present case. Swain v. Junior, No. 1:20-CV-21457-KMW, 2020 WL 2078580, at *2 (S.D. Fla. Apr. 29, 2020), vacated and remanded, 961 F.3d 1276 (11th Cir. 2020). In Wilson there were even fewer cases—only 59—in a facility housing similar numbers of individuals as the Orange County Jail. Wilson, 961 F.3d at 840. And in Valentine, the district court appeared to have been aware of only a single confirmed case of COVID-19 when it issued its injunction. See Valentine v. Collier, No. 4:20-cv-1115, 2020 WL 1916883, at *9 (S.D. Tex. Apr. 20, 2020) (“[T]he Pack Unit has already reported one confirmed case of COVID-19. . . .”). That is not a split. That is how the system is supposed to work; lower courts applying the same legal standard to different circumstances should reach different results.
On top of this there are myriad other fact-intensive distinctions among the cases: the nature of the facilities (local jails like the Orange County Jail have significantly more population turnover than prisons), the length of time over which inmates were being infected, differences in the prevalence of COVID-19 in different communities, and the extent to which experts found that the facility was consistently and sufficiently implementing appropriate policies. The court of appeals in Swain, for example, found in favor of the defendants only after a district court-commissioned expert found that the facility’s staff “should be commended for their commitment to protect the staff and inmates in this facility during this COVID-19 pandemic.” 958 F.3d at 1089. Likewise, the court of appeals in Valentine stayed the district court’s injunction only after concluding that defendants were already taking adequate protective measures, including “many of the things that the district court [had] ordered.” 956 F.3d at 801– 02.
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The differences extend to the prison officials’ responses. Unlike in Swain and Valentine, the district court here determined that Applicants “undoubtedly know of the risks posed by COVID‐19 infections” because they had “been repeatedly warned by several organizations—including a group of Orange County Sherriff deputies—of the dangers from COVID‐19 in the Jail.” ECF No. 65 at 17. The court further found that Applicants “knew, by way of the CDC Guidelines, that failure to take certain precautionary measures would result in an increase in the spread of infections.” Id. at 17–18. On this basis, the district court concluded “that Plaintiffs have established the likelihood of subjective deliberate indifference.” Id. at 18.
Further, Applicants provided the district court with contradictory information, while Plaintiffs have provided significant evidence of Jail staff’s failure to comply with policies, of Applicants’ outright refusal to follow court orders, and of hazardous conditions in which COVID-19 continues to spread rapidly inside the institution. See infra Part I.B.; see also ECF Nos. 106, 107, 108, 111, 66-4.
Thus, to the extent the outcome in this case differs from the outcomes in Swain and Valentine, the difference merely reflects that the district court was presented with a different factual record and therefore made different factual findings. As discussed above, those factual disputes do not constitute a split meriting this Court’s review.
B. This case would be an inappropriate vehicle to address any asserted split in the Circuits.
In any event, the decision below rests not only on the Eighth and Fourteenth Amendments, but also independently on the ADA and Section 504 of the Rehabilitation Act. The district court certified a subclass of disabled detainees and determined that
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their ADA and Rehabilitation Act claims are likely to succeed, and Applicants do not even challenge the district court’s findings with respect to those claims, much less point to any split in the circuits. ECF No. 65 at 18. All of the relief ordered by the district court’s preliminary injunction can be sustained squarely as unchallenged relief under disability rights laws. All of the changes ordered in the decision below are orders for reasonable modifications and nondiscriminatory methods of administration necessary under the ADA and Section 504 of the Rehabilitation Act to avoid disability discrimination. These changes must be implemented throughout the Jail to address the violations of the statutory rights of the members of the disabled subclass, who live and move throughout the Jail. As those statutory grounds provide an independent and unchallenged basis for the preliminary injunction, this case would be an inappropriate vehicle to address any conflicts regarding the constitutional claims, even if such conflicts existed. Applicants’ failure even to address the statutory bases for the injunction is sufficient, in itself, to deny certiorari.
There are additional vehicle problems as well. This case is at a preliminary stage and discovery remains ongoing. This Court generally prefers to review final judgments with fully developed factual records. The interlocutory status of this case is a particularly strong factor counseling against review in light of the factual record’s state of flux. Indeed, in its June 26 order denying Applicants’ ex parte application to dissolve the injunction, the district court also expedited discovery to allow Plaintiffs the opportunity to properly evaluate Applicants’ evidence. As the court explained: “Before the Court can conclude that the circumstances have truly changed in such a way to warrant dissolution of the injunction, Plaintiffs must have the opportunity to
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evaluate Defendants’ evidence and determine whether other evidence contradicts it. Because it would serve both parties’ interests to quickly determine the actual state of the outbreak, there is good cause for ordering expedited discovery.” ECF No. 93 at 2.
Applicants’ inconsistent litigation positions have likewise clouded the factual record. While the preliminary injunction motion was pending, Applicants maintained, in sworn declarations, that they had “already implemented all of the mitigation efforts outlined in [Plaintiffs’] request for relief.” Balicki Decl., ECF No. 44-10 at 2. In their second motion for a stay pending appeal, however, Applicants changed course and submitted a new declaration asserting that “portions of the [injunction] require action that the Sheriff simply cannot comply with due to safety and security concerns for jail staff and inmates.” Am. Balicki Decl., 9th Cir. Appeal No. 20-55568, Dkt. No. 9 at 2. As the Ninth Circuit noted, “Defendants’ new position cannot be reconciled with [their prior] sworn statement in the district court, which represented not only that Defendants were willing and able to implement each of the specific measures requested by Plaintiffs (and later incorporated into the injunction), but that they had in fact already implemented them.” 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 2. The uncertainties created by Applicants’ shifting factual claims render this case a poor vehicle for resolving the issues presented. See Taylor v. Yee, 136 S. Ct. 929, 930 (2016) (Alito, J., concurring in the denial of certiorari) (“The convoluted history of this case makes it a poor vehicle for reviewing the important question it presents. . . .”).
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II. The Court Is Unlikely to Reverse the Lower Court’s Decisions. A. The district court correctly stated and appropriately applied the objective deliberate indifference standard.
Applicants contend that the district court abused its discretion by misstating, mischaracterizing, or misapplying the correct legal standard for determining whether prison officials acted with objective deliberate indifference. Application at 11–14. But a review of the district court’s order confirms that the district court identified and applied the correct standard. In the unlikely event this Court were to eventually grant certiorari, there is little chance it would reverse.
To establish objective deliberate indifference, a plaintiff must prove that “the defendant did not take reasonable available measures to abate [a substantial risk of harm], even though a reasonable official in the circumstances would have appreciated the high degree of risk involved.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794 (2019); see also Farmer, 511 U.S. at 847 (prison official is deliberately indifferent if, among other things, he “disregards [a substantial risk of serious harm] by failing to take reasonable measures to abate it”); Shorter v. Baca, 895 F.3d 1176, 1190 (9th Cir. 2018). To satisfy this element, “the defendant’s conduct must be objectively unreasonable.” Gordon, 888 F.3d at 1125 (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)). “Thus, the plaintiff must ‘prove more than negligence but less than subjective intent—something akin to reckless disregard.’” Id. (quoting Castro, 833 F.3d at 1071).
In its May 26 order, the district court determined that Plaintiffs had established
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objective deliberate indifference. ECF No. 65 at 14. Specifically, the court found that
“[t]he risk of harm within the Jails is undeniably high” given the ongoing spread of
COVID-19, that Applicants had failed to “comply[] meaningfully with the CDC
Guidelines” to abate the risk of infection, and that Applicants’ “failure to comply
demonstrates deliberate indifference toward the health and safety of the inmates.” Id. at 14–17. Based on these findings, the court concluded that “Plaintiffs have
demonstrated a likelihood of establishing that defendants are deliberately indifferent” to the risk of COVID-19 infection faced by Plaintiffs. Id. at 17.4
Although Applicants baldly assert that “[t]he district court employed an
‘incorrect legal standard’ to arrive at its conclusion of objective deliberate indifference,”
Application at 13, they do not contest that the district court set forth the appropriate
legal standard. Nor could they, as the district court cited and quoted the same Ninth
Circuit decisions that Applicants cite to establish the objective deliberate indifference
standard. Compare ECF No. 65 at 13–14 (citing and quoting Gordon, 888 F.3d at
1125), with Application at 12 (same).
Instead, Applicants latch onto two sentences in the order to argue that the
4 Applicants opine that “[i]t is unclear why the district court did not find that voluntarily releasing 53 percent of the detained inmates was reasonable enough.” App. at 13. Although Applicants describe this measure as “voluntary,” they neglect to mention that a large number of these releases were pursuant to court orders under a statewide “zero bail” order, which zeroed out bails for most minor offenses. See JUDICIAL BRANCH OF CALIFORNIA, Judicial Council Adopts New Rules to Lower Jail Population, Suspend Evictions and Foreclosures (Apr. 6, 2020), https://newsroom.courts.ca.gov/news/judicial-council-adopts-new-rules-to-lower-jailpopulation-suspend-evictions-and-foreclosures; see ECF No. 44-9 at 2; see infra Part II.C. This order has since been rescinded, contributing to the now rising population of detainees in the Jail. See, e.g., ECF No. 110 at 3.
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district court mischaracterized and misapplied the appropriate legal standard (i.e., whether the defendant failed to take reasonable available measures to abate a substantial risk of harm). These sentences cannot bear the weight Applicants place upon them.
First, in concluding that Applicants’ failure to comply with CDC Guidelines demonstrated their deliberate indifference, the court stated: “An institution that is aware of the CDC Guidelines and able to implement them but fails to do so demonstrates that it is unwilling to do what it can to abate the risk of the spread of infection.” ECF No. 65 at 17. Applicants contend that because a defendant’s subjective beliefs about available measures is irrelevant to objective deliberate indifference, their “aware[ness]” of the CDC Guidelines is immaterial. Application at 13. But Applicants acknowledge that “[t]he objective deliberate indifference standard examines whether a jail took ‘reasonable available measures to abate [the] risk.’” Id. (alteration in original). And the district court’s order explained at length that Applicants had failed to take reasonable available measure to abate the risk of COVID-19 infections, including by failing to comply with CDC Guidelines.
Second, Applicants make much of the district court’s statement that “they must fully and consistently comply [with CDC Guidelines],” ECF No. 65 at 17, contending that “‘full and consistent’ compliance is a higher standard than required by the Constitution, and this standard is not found in precedent.” Application at 13. Read in context, however, the district court’s statement plainly does not treat the CDC Guidelines as binding law; it merely reflects the commonsense notion that Applicants’ manifestly incomplete compliance with CDC Guidelines is evidence of deliberate
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indifference. As the court explained (in text Applicants notably omit), regular and consistent compliance with CDC Guidelines helps ensure “that the compliance is an effective tool to abate the spread of infection.” ECF No. 65 at 17.
In short, Applicants cannot establish that the Court misstated or mischaracterized the relevant legal standard for establishing objective deliberate indifference.
B. The district court correctly stated and appropriately applied the subjective deliberate indifference standard.
Under the Eighth Amendment, an official acts with deliberate indifference when he or she: (1) “knows that inmates face a substantial risk of serious harm,” and (2) “disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 827); see also Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013). Therefore, in addition to the objective deliberate indifference required for a Fourteenth Amendment violation, a plaintiff must show that an official acted with subjective deliberate indifference, i.e., that an official knew of the substantial risk of serious harm, to establish an Eighth Amendment violation.
Applicants argue that the district court abused its discretion by applying the incorrect legal standard for the subjective element of the Eighth Amendment claim. First, Applicants argue that the district court erred because it “relied solely” on evidence that the Jail “knew, by way of the CDC Guidelines, that failure to take certain precautionary measures would result in an increase in the spread of infections.” Application at 16. This is not true. The district court also relied on the fact that Defendant Barnes received “repeated[] warn[ings] by several organizations—including
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a group of Orange County Sherriff deputies—of the dangers from COVID-19 in the Jail.” ECF No. 65 at 17.
Second, Applicants argue that the district court erred by failing to explicitly analyze whether Applicants “consciously ‘disregarded’” their knowledge that failure to take certain precautionary measures would increase the spread of COVID-19 infections. Application at 15–17. However, Applicants mischaracterize the proper legal analysis, which does not require courts to separately analyze whether an official “consciously disregarded” a risk. This Court has made clear that to violate the Eighth Amendment, “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842.
Here, the district court applied the proper legal standard to conclude that the Detainee Class showed a likelihood of success on their claim that Applicants acted with deliberate indifference in violation of the Eighth Amendment. The district court correctly reasoned that Applicants “undoubtedly kn[e]w of the risks posed by COVID19 infections,” as they received repeated warnings about the risk and guidance from the CDC about the spread of infections. ECF No. 65 at 17. The district court also correctly concluded that Applicants’ failure to meaningfully comply with the CDC Guidelines demonstrated a failure to take reasonable measures to abate the substantial risk of serious harm posed by the COVID-19 pandemic. See id. at 16–18. Therefore, the district court properly applied the standard for subjective deliberate indifference by considering: (1) whether Applicants knew that inmates faced a substantial risk of serious harm, and (2) whether Applicants failed to take reasonable measures to abate that risk. See Farmer, 511 U.S. at 847.
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C. The district court correctly found that the Jail officials were aware that COVID-19 presented a substantial risk of serious harm to the Detainee Class.
Applicants also argue that the district court abused its discretion by relying on clearly erroneous factual findings. This contention has no merit. A district court’s “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. Proc. 52(a)(6). In “applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted). As long as “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 573–74. Applicants’ mere assertions are not enough to show that the district court made any errors, let alone clear errors.
In the preliminary injunction order, the district court considered evidence of COVID-19 testing results in the Jail from April 22 to May 26, 2020. ECF No. 65 at 16. This data revealed a consistent increase in the total number of positive COVID-19 tests in the Jail, which the district court accurately described as a “soaring number of confirmed cases.” Id. As of the date that the district court entered the preliminary injunction, there were 369 confirmed COVID-19 cases in the Jail. Id. at 15.
Applicants do not dispute the underlying data that the district court relied on, which showed that the total number of confirmed cases consistently increased in the
28

weeks leading up to the preliminary injunction order. Instead, Applicants just quibble with how the district court described the data. Applicants contend that the district court’s finding that the number of confirmed cases was “soaring” at the time of the preliminary injunction is clearly erroneous because the district court should have weighed the facts about the number of infections differently. Application at 17–19. This cannot be clear error. See Anderson, 470 U.S. at 573–74.
Applicants suggest that rather than considering the increase in the total number of confirmed cases in the Jail, the district court should have focused on evidence that the number of new infections increased at a slower rate in the weeks immediately preceding the district court’s preliminary injunction order. Application at 18 (“A more accurate and precise approach to calculating this rate would be to compare each week’s rate of new infections to the previous week’s rate.”). Yet that does not change the fact that just a few weeks earlier the Jail was indeed in the midst of an alarming and rapid climb in cases, and the total number of infections still continued to increase. See ECF No. 65 at 16. The district court found that the available data showed that COVID-19 cases were “soaring,” and that the increase in positive test results was not merely due to an increase in testing. The court compared the total number of confirmed cases to the total number of recovered cases to conclude that there were “57 inmates who likely contracted the virus within the past two weeks.” Id. at 15. Given that the total number of infections continued rising in the weeks leading to the preliminary injunction order, the district court’s finding that cases were “skyrocketing” was well-grounded in the evidence in the record – it was obviously not clear error, even if Applicants believe some other approach might have been more “precise.”
29

Moreover, Applicants concede that the rate of new infections (their preferred focus) did continue to increase from April 22 to May 8—just two-and-a-half weeks before the district court entered the preliminary injunction. See Application at 18. Even though the rate of new positive COVID-19 tests temporarily slowed in the days immediately preceding the injunction, it was not clear error for the district court to view the recent trend of increasing infection rates as cause for concern, particularly when the number of total infections was continuing to increase at the time. Again, Applicants’ disagreement with how the district court weighed the COVID-19 testing results does not amount to clear error.
Applicants next suggest that the fact that the Sheriff voluntarily released a large percentage of the jail population “vitiates the [district court’s] factual finding that the jail was subjectively deliberately indifferent to the risk of harm to the inmates.” Application at 20. However, the fact that the Jail released some number of inmates does not render the district court’s factual findings clearly erroneous. The record is replete with evidence demonstrating that Applicants were aware of a serious risk of substantial harm to the inmates that remained within the Jail at the time the district court entered the preliminary injunction. The district court acknowledged that “Defendants have reduced the Jail’s population.” ECF No. 65 at 5. Yet the district court concluded that Applicants were aware that the 2,826 individuals who remained in the Jail at the time were exposed to a serious risk of substantial harm from COVID19.5 The district court found that despite the releases, Applicants were not
5 The number of detainees in the Jail has risen since the district court entered the preliminary injunction. The Jail population was 3,310 as of July 24, 2020. Defs.’
30

maintaining social distancing measures. Id. at 6. The district court credited declarations that inmates with known exposure were not quarantined, and the Jail allowed symptomatic individuals to mingle in common areas with asymptomatic individuals. Id. at 5–6. The court also credited testimony that inmates did not “receive sufficient cleaning supplies to keep their living areas clean and disinfected.” Id. at 6.
Given this evidence, the court did not err in concluding the confinement conditions posed a serious risk of harm to inmates, because “[w]hen Defendants fail to quarantine symptomatic individuals or provide sufficient cleaning supplies, all inmates are at risk.” Id. at 15. The district court also concluded that Applicants were aware of that risk because they received repeated warnings about the dangers of COVID-19 in the Jail, and the CDC Guidelines informed them that “failure to take certain precautionary measures would result in an increase in the spread of infections.” Id. at 17–18. The record clearly supports the district court’s finding that Applicants acted with subjective deliberate indifference because their failure to take precautionary measures exposed the inmates to serious risk of substantial harm, and Applicants were aware of that risk.
Applicants further contend that the district court “refused to consider” their evidence that infection rates dropped from June 3 to June 10, 2020, when it denied their application to dissolve the preliminary injunction. Application at 18–19. This is false. The district court did not refuse to consider Applicants’ evidence—it just refused to treat Applicants’ unilateral assertions of the facts as dispositive. Instead the district
7/24/20 Compliance Report, ECF No. 111 at 3. 31

court properly granted a motion for expedited discovery to “determine the actual state of the outbreak” and to give Respondents an opportunity to evaluate Applicants’ evidence. ECF No. 93 at 2. Moreover, the district court explained that “[e]ven if Defendants have dropped the transmission rate to zero, it is certainly not time yet to draw down preventative measures—unless Defendants consistently implement those steps outlined in the injunctive order, a second spike is likely to occur.” Id. The district court was sadly prescient; a second spike is currently occurring. See Defs.’ 7/24/2020 Compliance Report, ECF No. 111; infra Part III.
This Court is especially unlikely to reverse the district court’s factual findings given the preliminary nature of this case. Aside from the fact that the district court’s factual findings are not clearly erroneous, it is far from likely that this Court would review the factual findings in their current form, because the factual findings will be updated to reflect ever-evolving developments regarding the spread and risk of COVID19. Indeed, discovery is currently ongoing to provide additional evidence of changed circumstances. ECF No. 93. Applicants’ arguments regarding the evolving facts since the district court granted the preliminary injunction are premature. The district court must be given the opportunity to evaluate these facts along with the information that discovery will provide regarding whether officials have been complying with preventative measures ordered in the preliminary injunction. The fact-specific nature of Applicants’ arguments and the preliminary posture of this case reinforce that an emergency stay is inappropriate.
Moreover, the Court is unlikely to reverse the district court’s factual findings because they were based on credibility determinations. The district court examined
32

the parties’ evidence and testimony, including assessing the credibility of witnesses. The Detainee Class submitted 43 declarations from inmates in the Jail, describing the conditions in the Jail during the initial spread of COVID-19. Applicants submitted declarations from officers regarding the precautionary measures they had taken to prevent the spread of the virus. The district court found that to the extent the officer testimony submitted by Applicants conflicts with the inmate testimony submitted by Plaintiffs, “the Court finds the inmate testimony more credible.” ECF No. 65 at 14 n.10. The court explained that the officer testimony is “general, brief, and only broadly describes the Jail’s policies,” whereas the inmate testimony “describes repeatedly and in exacting detail Defendants’ failures to implement the CDC Guidelines.” Id. Moreover, the court noted that the inmates submitted “dozens” of corroborating declarations, while only three officers submitted declarations.6 Id. The court concluded that Applicants submitted “no persuasive evidence contradicting the accounts of the inmates.” Id. at 15. Applicants have not challenged the district court’s credibility determinations, and rightly so. The record amply supports the district court’s credibility determinations and factual findings. See Anderson, 470 U.S. at 574– 75.
D. The district court did not abuse its discretion in setting the scope of its preliminary injunction.
Applicants frame the question presented as whether the district court “erred in issuing an injunction . . . that exceeds the scope of the CDC Guidelines.” Application
6 Additionally, those declarations that Applicants submitted were vague and relied heavily on second-hand information and assumptions, as recently confirmed in depositions of these officers.
33

at ii; see also id. at 15. And this supposed error also forms the basis of their claimed

circuit split. See Application at 9; but see supra Part I.A. Yet Applicants make no

argument as to why to the district court committed any legal error in setting the scope

of its injunction.

Applicants’ premise is wrong: the preliminary injunction generally tracks the

Guidelines, applying them to the particular circumstances of the Jail. For example,

the Guidelines state that “ideally” inmates should be provided with six feet of space,

see CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention

Facilities,

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-

detention/guidance-correctional-detention.html (last accessed July 29, 2020) (“CDC

Interim Guidance”), and the district court determined that this Guideline was

appropriate in the circumstances of the Jail and adopted it as a requirement.7 ECF No.

65 at 20; see Application at 11 (identifying this as a part of the injunction purportedly

exceeding the Guidelines). The Guidelines expressly contemplate that they “may need

to be adapted based on individual facilities’ physical space, staffing, population,

operations, and other resources and conditions,” and state that individual facilities

7 Similarly, Applicants’ contention that the district court’s order exceeds the CDC Guidelines because the order requires Petitioners to take the temperature of all class members daily mischaracterizes the CDC Guidelines. See Application at 10. The CDC Guidelines suggest that “[i]f individuals with COVID-19 have been identified among staff or incarcerated/detained persons anywhere in a facility,” the facility should “consider implementing regular symptom screening and temperature checks in housing units that have not yet identified infections, until no additional infections have been identified in the facility for 14 days.” See CDC Interim Guidance (emphasis in original).
34

“should adapt these guiding principles to the specific needs of their facility.” See CDC Interim Guidance. The district court did just that.
Even if the injunction could fairly be viewed as exceeding the CDC Guidelines in some respects, the district court committed no error. “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam). Having found a likelihood of success on the merits of Plaintiffs’ claims, the district court acted well within its discretion in fashioning relief. That relief was based on Applicants’ failure to take appropriate measures—including its failure to comply with the CDC Guidelines, ECF No. 65 at 16—together with the troubling rise in COVID-19 cases at the Jail. As the district court found, the CDC Guidelines were not intended as the “floor” of an adequate response in a jail “with at least 369 COVID-19 cases,” since “[a]s the rate of infection rises, so must the required response.” ECF No. 65 at 17. Applicants do not explain what was erroneous about that finding, much less how it could have constituted a reversible abuse of the district court’s equitable discretion.
III. Applicants Have Not Demonstrated that Denial of a Stay Will Cause Irreparable Harm, Yet Granting a Stay Would Significantly Harm the Detainee Class. When Applicants first opposed Plaintiffs’ motion for a preliminary injunction,
they argued that the motion was unnecessary because Applicants had “already implemented all of the mitigation efforts outlined in plaintiffs’ request for relief.” Balicki Decl. ECF No. 44-10 at 2. Applicants changed their position after the motion was granted. They argued in their requests to the district court and Ninth Circuit for
35

a stay pending appeal of the preliminary injunction that compliance was either impossible or unsafe. See 9th Cir. Appeal No. 20-55568, Dkt. No. 8-1 at 1; 9th Cir. Appeal No. 20-55568, Dkt. No. 14 at 6. As the Ninth Circuit observed in denying Applicants’ request, “[a]n injunction cannot cause irreparable harm when it requires a party to do nothing more than what it maintained, under oath, it was already doing of its own volition.” See 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 7. Applicants previously represented “not only that [they] were willing and able to implement each of the specific measures requested by [the Detainee Class] (and later incorporated into the injunction), but that they had in fact already implemented them.” Id. at 6 (emphasis in original).
The Application never addresses, much less refutes, this fact, which the Ninth Circuit considered dispositive in denying a stay. 9th Cir. Appeal No. 20-55568, Dkt. No. 19-1 at 8. Nor could Applicants contest it. Even in their stay application, Applicants assert that they have “(1) largely implemented to the extent possible CDC Guidelines across the board, (2) released half of the inmate population to provide social distancing, (3) radically increased cleaning and hygiene, (4) provided staff and inmates with personal protective equipment (‘PPE’), and (5) essentially eliminated COVID within the jail population with the exception of new detainees.” Application at 2–3. Applicants’ failure to engage with their own sworn evidence that the injunction poses no harm to them is reason enough to deny the Application.
Unable to respond to the Ninth Circuit’s chief reason for denying a stay or even to articulate any concrete harm from the injunction, Applicants simply make generic legal arguments. For the first time, Applicants argue without support that they have
36

“demonstrated likelihood of irreparable harm in the form of judicial micromanagement of state executive branch jail affairs and resources, especially where they have proven demonstrably successful.” Application at 7. Putting aside the troubling suggestion that the current circumstances at the Jail represent “demonstrable success,” this is just an abstract claim of legal harm—Applicants provide no factual or legal support to establish how administration of the Jail will actually be harmed, let alone irreparably. Applicants claim that they will have to spend public resources because of the injunction (which again is curious when they previously stated that they were already complying with the terms of the injunction), but they also have not presented any evidence, for instance, that the injunction would lead to undue costs or other harms. Application at 24. Even assuming that “judicial micromanagement” is a cognizable harm rather than just a claimed legal error, Applicants have not explained how such a harm is irreparable and could not be addressed through the normal course of appeal. They do not engage with the uniqueness and urgency of this pandemic, and the fact that any judicial supervision would hopefully not need to be prolonged if and when proper action is taken and the pandemic subsides.
Applicants’ inability to state or substantiate any irreparable harm has been constant throughout this litigation, pointing to one conclusion: they cannot articulate any concrete harm from the injunction, but simply object to the concept of operating under a court order. That is not a substantiated claim of irreparable harm capable of warranting extraordinary relief. The district court therefore did not abuse its discretion by ordering expedited discovery to explore the factual basis for Applicants’ new, contradictory position that the Sheriff cannot comply with the social distancing
37

requirements and other components of the preliminary injunction order, see 9th Cir. Appeal No. 20-55668, Dkt. No. 2-1 at viii–x, rather than granting an immediate dissolution of the preliminary injunction based on these new, untested factual assertions. See Ruckelshaus, 463 U.S. at 1317 (Blackmun, J., in chambers) (“An applicant’s likelihood of success on the merits need not be considered . . . if the applicant fails to show irreparable injury from the denial of the stay.”); Leiva-Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011) (without adequate proof of irreparable harm, “a stay may not issue, regardless of the [applicants’] proof regarding the other stay factors.”).
Nor did the district court abuse its discretion in determining that the risk of harm to the Detainee Class remains grave. COVID-19 can cause permanent damage, regardless of whether the infected individual has recovered. And it is estimated that 1–2% of those who are infected by the virus could die. Parker Decl., ECF No. 79-10, at ¶ 27. As the district court has noted, “[b]ecause the virus is contagious . . . the uninfected inmates are likely to contract the disease if they remain in the Jail. And the 488 medically vulnerable inmates are likely to get very sick and possibly die.” ECF No. 65 at 14.
Contrary to Applicants’ representations, the situation has worsened, not improved. As Applicants themselves acknowledge, “COVID-19 is not quickly departing as a pressing health concern,” and there are “significant and dangerous outbreaks in some custodial institutions in this country.” Application at 2–3. Applicants maintain that the Jail is “not one of them,” and that the health crisis in its facilities was either not that bad, or that it has since improved. These
38

arguments are best presented to the district court, which has been carefully monitoring the developments on the ground.
More fundamentally, though, Applicants’ representations are not credible. These representations are belied by Applicants’ own records indicating a surge of cases when the district court granted the preliminary injunction on May 24, 2020, and an ongoing rapidly rising number of COVID-19 cases since June 24, 2020. These are new cases, not accumulated old ones as Applicants imply. Application at 17– 18. Although the Applicants filed their stay application on July 21, 2020, they conveniently referred to statistics only up until June 24, 2020, when there were reportedly four active COVID-19 cases from new arrestees. Applicants neglected to mention that since June 24, 2020, their own records indicate that the number of active cases has increased dramatically. Applicants represented to this Court that “there is currently zero transmission of COVID at the Orange County jails,” Application at 5, while concurrently submitting a status report to the district court identifying 40 confirmed positive tests as of July 24, including 15 likely arising from intra-jail transmission from a COVID-19-positive inmate housed in the general population at Theo Lacy Facility. Defs.’ 7/24/20 Compliance Report, ECF No. 111 at 2–3. It is remarkable that just days before releasing this information, Applicants would falsely boast to this Court that they had “reduced intra-jail transmission to zero.” Application at ii.
The Sheriff’s Department’s reports separately indicate that as of July 24, 2020, there were a record high 56 active cases reported as “Medical Isolation (Symptomatic),”
39

an increase of 1400% between June 24, 2020 and July 24, 2020.8 There are now more of these cases than at the time of issuance of the injunction; in fact, over the past week, there have been more such cases than at any point since the Sheriff’s Department began reporting the number of active cases on May 5, 2020, as shown in Figure 1.
Figure 1
Daily Number of Active COVID-19 Cases (Positive Inmates with Symptoms)
60 50 40 30 20 10
0
These facts, which should be addressed in the first instance by the district court with the aid of additional discovery, confirm that Applicants do not face any irreparable harm by complying with the preliminary injunction, and that any irreparable harm would be to the inmates who could potentially become ill or die as a result of COVID-
8 The Orange County Sheriff’s Department appears to publish a daily count of active, pending, and recovered cases of COVID-19 in Orange County Jails. The daily count is accessible at the URL https://www.ocsd.org/documents/sheriff/COVIDStats[date].pdf where [date] refers to a particular date in the following format: 7.24.20 for July 24, 2020. For example, the daily count for July 24, 2020 is accessible at the URL https://www.ocsd.org/documents/sheriff/COVIDStats7.24.20.pdf. There is a daily count available for most, but not all, days beginning April 22, 2020, until July 29, 2020. Respondents were able to access 63 daily counts from April 22, 2020 to July 29, 2020 to compile these statistics.
40

19 transmission in the Jail. Applicants’ continued attempts to thwart a preliminary injunction issued to prevent just such transmissions should be rejected, and Applicants should focus on taking measures to prevent the worsening proliferation of COVID-19 cases in the Jail.
IV. The Balance of Hardships and Public Interest Favor Denial of a Stay. As the district court explained in issuing the preliminary injunction order,
“[t]he balance of equities and public interest tilt heavily [in] [the Detainee Class’s] favor” with regard to the relief the court provided. ECF No. 65 at 19. Requiring Applicants to comply with the preliminary injunction order while proceeding with targeted expedited discovery to determine what infection control measures Applicants may be implementing is likewise in the public interest.
COVID-19 cases are currently spiking in Orange County. This puts additional pressures on the Jail. Assuming Applicants’ “new” information is substantiated, at least four cases of COVID-19 have entered the Jail from the community within the last few weeks, and the records show 56 active cases as of July 24, 2020. 9th Cir. Appeal No. 20-55668, Dkt. No. 2-1 at vi–vii. As cases rise in the outside community, stress will increase on already-taxed hospitals. Parker Decl., ECF No. 79-10, at ¶ 28. A fresh eruption of cases in the Jail would only exacerbate that strain. Id. at ¶ 30. Further, as community spread increases, so do the chances that Jail staff and newly-incarcerated individuals will bring the virus with them into the Jail. Id. at ¶ 31. A vicious cycle of infectious spread between the Jail and the outside community is a real and frightening possibility. Id. at ¶ 18.
41

Congregate environments, especially carceral settings, are highly prone to outbreaks of disease. Applicants do not dispute that the Jail itself played host to a major COVID-19 outbreak in which hundreds of incarcerated individuals were infected. It is impossible to tell how much long-term damage this has done to those individuals’ health, nor is it possible to know the extent to which the cases in the Jail contributed to broader community spread.
Given the clear harm caused by the first wave of COVID-19 infections in the Jail and the current increase, a stay would expose the public and the Jail’s residents to immense risk. Applicants claim that, due to their vigilance, the first wave of COVID-19 in the Jail has ebbed. Even if the rate of infections were decreasing, an assertion contradicted by Applicants’ own records, the district court correctly found that staying the preliminary injunction without offering the Detainee Class and the court a meaningful opportunity to evaluate Applicants’ new representations would be ill-advised. The grave threat to the health and safety of detainees in the Orange County Jail vastly outweighs the abstract objections to “judicial micromanagement” Applicants have mustered. This Court should deny the application for a stay and allow the district court to proceed with determining the facts on the ground to prevent further illness and deaths. The first wave of cases in the Jail was a tragedy. The second wave is unconscionable, and granting Applicants’ stay application would make it worse.
CONCLUSION For all these reasons, the Court should deny the application for a stay of injunctive relief pending appeal.
42

July 30, 2020

Respectfully submitted,

Cassandra Stubbs AMERICAN CIVIL LIBERTIES UNION FOUNDATION 201 W. Main St., Suite 402 Durham, NC 27701 (919) 682-5659
David Cole Somil Trivedi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th St., NW Washington, DC 20012 (202) 549-2611
Paul Hoffman UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW CIVIL RIGHTS LITIGATION CLINIC 401 E. Peltason Dr., Suite 1000, Irvine, CA 92687 (949) 824-0066
Zoe Brennan-Krohn AMERICAN CIVIL LIBERTIES UNION FOUNDATION Disability Rights Program 39 Drumm St. San Francisco, CA 94111 (415) 343-0769
Carl Takei AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004

______________________ David M. Zionts
Counsel of Record Stacey K. Grigsby Amia Trigg Steven Winkelman Eric Chung Laura E. Dolbow COVINGTON & BURLING LLP One CityCenter 850 Tenth St., NW Washington, DC 20001 (202) 662-6000 dzionts@cov.com
Mitchell Kamin Aaron Lewis COVINGTON & BURLING LLP 1999 Avenue of the Stars Los Angeles, CA 90067-4643 (424) 332-4800
Peter Eliasberg AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN CALIFORNIA 1313 W 8th St. Los Angeles, CA 90017 (213) 977-9500
John Washington SCHONBRUN, SEPLOW, HARRIS, HOFFMAN & ZELDES LLP 11543 W. Olympic Blvd. Los Angeles, CA 90064 (310) 399-7040

Counsel for Respondents 43

 
 No. 20A19
IN THE SUPREME COURT OF THE UNITED STATES _______________________________________
MELISSA AHLMAN, et al.,
Plaintiffs-Respondents,
v.
DON BARNES and ORANGE COUNTY, CALIFORNIA,
Defendants-Applicants. _______________________________________
To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and Circuit Justice for the Ninth Circuit _______________________________________
APPLICANTS’ REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR STAY OF INJUNCTIVE
RELIEF PENDING APPEAL OF DENIAL OF STAY APPLICATION IN THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT _______________________________________
LEON J. PAGE, COUNTY COUNSEL Laura D. Knapp, Supervising Deputy (SBN 162800)
D. Kevin Dunn, Senior Deputy (SBN 194604) Rebecca S. Leeds, Senior Deputy (SBN 221930)
Kayla N. Watson, Deputy (SBN 286423) 333 West Santa Ana Boulevard, Suite 407
Santa Ana, California 92701 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
Email: kevin.dunn@coco.ocgov.com
Attorneys for Defendants-Applicants
i

TABLE OF CONTENTS

Page No.

APPLICANTS’ REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR STAY OF INJUNCTIVE RELIEF PENDING APPEAL OF DENIAL OF STAY APPLICATION IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT .........................................i

TABLE OF CONTENTS……….......................................................ii

TABLE OF AUTHORITIES…........................................................iii

I. Recent Decisions in this Court Establish that the Likelihood of Four Justices Granting Certiorari is High.................................................................................... 1

II. Respondents’ Opposition Departs from the Factual Record....................................................................... 6

III. Respondents Fail to Distinguish the Cases from Three Circuits that Are Split from the Outlying Ninth Circuit on this Issue .................................... 9

IV. CONCLUSION .................................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Page No.

Bell v. Wolfish, 441 U.S. 520 (1979).............................................................. 10

Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4260438 (D. Nev. June 11, 2020)....................... 3, 4

Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, 2020 WL 4251360 (U.S. July 24, 2010) ...... 2, 3

Farmer v. Brennan, 511 U.S. 825 (1994)........................................................ 10, 12

Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018) ............................................... 10

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ................................................................. 4

Marshall v. United States, 414 U.S. 417 (1974)................................................................ 4

Money v. Pritzker, 2020 WL 1820660 (7th Cir. 2020)........................................... 9

Roman v. Wolf, 2020 WL 2188048 (9th Cir. May 5, 2020) ............................. 9

South Bay United Pentecostal Church v. Newsom, No. 19A1044, 140 S.Ct. 1613 (U.S. May 29, 2020), 2020 WL 2813056 .............................................................. 2, 3

Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) ............................................... 9

Swain v. Junior, 961 F.3d 1276 (11th Cir. June 15, 2020), 2020 WL 3167628 .................................................................. 5

Swain v. Junior, No. 20-11622, 2020 WL 3167628 (11th Cir. June 15, 2020)....................................................... 9

iii

TABLE OF AUTHORITIES (cont'd)

Page No.

Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020)......................................... 5, 9, 12
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), 2020 WL 3056217 .................................................................. 9
Wilson v. Williams, No. 20-3447, 2020 WL 3056217........................................... 12

References and Publications
Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/ guidance-correctional-detention.html (last visited August 3, 2020)................................................ 11

iv

APPLICANTS’ REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR STAY OF INJUNCTIVE
RELIEF PENDING APPEAL OF DENIAL OF STAY APPLICATION IN THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT Applicants-Appellants-Defendants the County of Orange and Don Barnes, Sheriff of Orange County, California respectfully submit the following Reply in support of their application for an emergency stay of the injunction issued by the United States District Court for the Central District of California, and the United States Court of Appeals’ denial of a stay of that order. Respondents-Appellees-Plaintiffs overlook recent decisions by this Court supporting Applicants’ position, depart from the factual record in their argument, and fail to meaningfully distinguish the cases that are the subject of the current Circuit split here.
I. Recent Decisions in this Court Establish that the Likelihood of Four Justices Granting Certiorari is High The issue here is not whether Applicants seek to end COVID-19
mitigation measures or avoid CDC Guidelines. They do not, as evidenced by immediate implementation of robust COVID-19 protocols long before Respondents’ initiation of this litigation. The issue is whether a United States District Court can find objective and subjective deliberate indifference under the Eighth and Fourteenth Amendments where elected local officials are aggressively (and successfully) fighting a novel pandemic, and issue an injunction which limits local officials’ ability to make time-sensitive responses to circumstances on the ground, without fear of running afoul of a federal court injunction.
1

Applicants’ position is supported by recent decisions by this Honorable Court. This Court has now ruled twice during this pandemic that broad latitude must be given to the local officials entrusted with protecting the health and safety of its citizens during this pandemic. In the Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, 2020 WL 4251360 (U.S. July 24, 2010) decision issued on July 24, 2020, this Court denied a request to stay enforcement of restrictions on worship services on the ground that courts should defer to the decisions made by state officials regarding health and safety measures put in place to protect their communities from the virus. Id. The Court denied the request of Calvary Chapel Dayton Valley for emergency injunctive relief from Nevada’s 50-person limitation on indoor religious services aimed at curbing the spread of COVID-19. This decision follows this Court’s earlier decision on May 29, 2020 in South Bay United Pentecostal Church v. Newsom, No. 19A1044, 140 S.Ct. 1613 (U.S. May 29, 2020), 2020 WL 2813056 where this Court also rejected a church’s request for emergency injunctive relief from California’s restrictions on worship services. These cases illustrate why the injunction issued in this case should not stand and a stay should be issued.
The South Bay Pentecostal opinion notes that “especially broad” latitude should be given to the officials entrusted with protecting health and safety during this pandemic and “should not be subject to secondguessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not
2

accountable to the people.” Id., at 1613-1614. In rejecting the request for injunctive relief in Calvary Chapel, this Court deferred to the decisions made by state officials regarding the health and safety measures put in place to protect their communities from the virus. No such deference was shown to Applicants.
The Calvary Chapel and the South Bay Pentecostal cases are similar to Applicants’ case. Here the District Court erred by essentially disempowering Applicants of their ability to assess and implement COVID-19 protocols in their custodial facilities, or make any adaptations, despite substantial evidence showing that they have the knowledge and expertise to best make those decisions based on the security requirements and limitations of their institution, without judicial supervision.
The District Court in Calvary Chapel aptly noted that interceding would require courts to potentially engage in daily or weekly decisions about public health measures that have traditionally been left to state and local officials. Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4260438, at *3 (D. Nev. June 11, 2020). That restraint was not exercised here. Indeed, here the District Court ordered Applicants to submit weekly compliance reports ensuring the Sheriff is in compliance with the CDC Guidelines and the injunction. See ECF 93, p. 3.1
The District Court in Calvary Chapel also explained that:
1 All references to ECF are to filings in the District Court case (8:20-cv00835-JGB-SHK).
3

…where state officials must also consider the public safety implications of enforcement of social distancing. That is to say that such enforcement could result in greater harm than that sought to be avoided by the Directive. The choice between which regulations or laws shall be enforced in social settings is a choice allocated generally to the executive, not the judiciary, absent clear patterns of unconstitutional selective enforcement.
Id., at 4. As here, whether certain CDC Guidelines are feasible to the letter
in a maximum security custodial facility, such as 6 feet or more social
distancing among inmates at all times, is a fact-intensive analysis that
should be allocated to the executive elected to run the institution, and
not the judiciary. Id.
Deference to local executive officials on the front lines is
particularly important during the COVID-19 pandemic. Chief Justice
Roberts emphasized the need to defer to elected local officials as they
confront the immense public policy problems created by COVID-19:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas fraught with medical and scientific “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). South Bay United Pentecostal, supra, at 1613-1614.
In the present case, the District Court’s injunction misapplies or
disregards this Court’s decisions discussed above. The injunction seizes
all aspects of jail administration as to COVID19 mitigation measures
and prevents critical and rapid responses to the virus in an ever-
changing landscape. Furthermore, it distracts focus to compliance with
4

the injunction, (which is in parts contrary to the spirit and letter of the CDC Guidelines) rather than squarely combatting the contagion head on. See Valentine v. Collier, 956 F.3d 797, 802-803 (5th Cir. 2020) (observing that the preliminary injunction issued by the district court “locks in place a set of policies for a crisis that defies fixed approaches”); Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. May 5, 2020), 2020 WL 2161317 (“The injunction hamstrings MDCR officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic. Appellants in this case cannot respond to the rapidly evolving circumstances COVID brings to the jails due to the impractical mandates within the injunction. Essentially, the District court requires the Sheriff to first seek a permission slip before implementing vital emergency changes to the COVID policies. Such a prohibition amounts to an irreparable harm.”) (internal quotation marks and citation omitted)).
The Ninth Circuit, in approving this injunction contradicts other Circuits and this Court’s own guidance regarding the deference owed to the Sheriff and other County officials. Moreover, even if the evidence was conflicting below, it does not justify judicial micromanagement, as the weight of authority on the other side of the circuit split have properly found. See Swain v. Junior, 961 F.3d 1276 (11th Cir. June 15, 2020), 2020 WL 3167628; Valentine v. Collier, supra. Applicants assert this issue is of significant import and is likely to continue to recur
5

during this pandemic, such that four Justices are likely to grant certiorari.
II. Respondents’ Opposition Departs from the Factual Record Respondents assert that, “[p]rior to the district court’s injunction,
Applicants were shuffling inmates around the Jail in defiance of CDC Guidelines and leaving detainees packed into dayrooms sharing the same air and bathrooms without social distancing.” Opp. at p. 1. This is nothing more than rhetorical flourish without factual support in the record. To the contrary, as has been established throughout this case, Applicants began implementing the CDC Guidelines to prevent the spread of COVID-19 the day they were issued, March 23, 2020. ECF 44-10; ECF 44-15. Further, long before this case was filed, Applicants began the early release of hundreds2 of inmates on March 27, 2020, to allow for as much social distancing as practicable and to allow for proper medical quarantine and isolation for symptomatic and COVID19 positive inmates. ECF 44-2 at ¶11; ECF 44-7.
Respondents state that, “symptomatic individuals were not being separated from asymptomatic ones, and at least one COVID-positive detainee was housed with individuals who had not tested positive.” Opp. at 1. Yet, what the factual record prominently shows is that Applicants have a robust medical quarantine and isolation procedure in
2 The Orange County Sheriff, at the time the Injunction was issued, had released 53% of its inmate population or roughly 2,300 inmates in a 2 month time frame.
6

place that is successfully minimizing spread. ECF 44-10; ECF 44-12. Respondents proclaim, “the facilities testing failures,” Id., yet, at
the time the injunction was issued, the Applicant’s had tested 1,118 inmates out of approximately 2,800. ECF 65 at p. 16; ECF 61 at ¶ 2. As of July 31, 2020, Applicants have tested 2,929 inmates out of a 3,380 inmate population. ECF 112 at p. 2. Since testing began on or around March 27, 2020, Applicants have only had a cumulative total of 476 positive cases, the vast majority of which currently come from new arrestees. Id.
Respondents assert that “any figures on COVID-19 infections are understated.” Opp. at p. 1. This appears to be a conclusion drawn by counsel, rather than a fact existing in the record. By contrast, to date, Applicants have tested 86% of its population and have reported out to the public on a daily basis since April 22, 2020. Opp. at p. 40, fn. 8; Id. The statement by Respondents is unsupported and in direct conflict with the evidence in the record.
Plaintiffs state that, “medical isolation (symptomatic) in the Jail increased by 1400%.” Opp. at p. 2. This number is misleading at best. Respondents fail to explain that “medical isolation (symptomatic)” simply means the inmate is showing symptoms, not that they have tested positive. While Respondents point to this “fact,” it is a case study in the effective response measures in place by Applicants. Indeed, this statement supports Applicants’ position that it is taking aggressive, proactive measures to stop the spread of COVID-19 by isolating more
7

people who are exhibiting symptoms, rather than leaving them in cells with other non-symptomatic inmates.
Respondents’ assert that, “Applicants informed the district court of 40 new confirmed positive tests, including 15 of likely transmission from a current detainee housed in the general population.” Opp. at p. 2. Again, this paradoxically demonstrates how effective Applicants’ mitigation protocols are. Applicants immediately identified the COVID positive inmate, contact traced back to all people with whom the inmate had contact, and quarantined and tested where medically appropriate. Rather than a complete outbreak throughout the Jail, these cases were quickly identified and mitigated, and led to just 15 positive cases (out of 3,310 inmates). ECF 111 at p. 2-3. Respondents-Plaintiffs conspicuously fail to mention that of the 40 new confirmed positive tests, 24 are new bookings. Id. at p. 3: lines 22-24. Applicants have no control over the general public and cannot deny new inmates into custody because they test positive or are showing COVID-19 symptoms.
What the factual record before this Court shows is that Applicants have developed and implemented effective protocols (consistent with CDC Guidelines) to identify new cases coming into the Jail and prevent the spread of COVID-19 amongst the general population at the Jail. This is not objective and subjective deliberate indifference under the Eighth and Fourteenth Amendments, subject to federal judicial injunction.
8

III. Respondents Fail to Distinguish the Cases from Three Circuits that Are Split from the Outlying Ninth Circuit on this Issue Despite Respondents’ general assertions that “conditions in
different jails are different” and responses in different jails have been different, (Opp. at p. 15) the law applied by the lower court here is directly at odds with at least three other Circuits that have addressed this issue. The District Court’s imposition of numerous mandates exceeding the CDC Guidelines undoubtedly directly contradicts the recent decisions of other United States Circuits. See Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020); Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. 2020); Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), 2020 WL 3056217; see also Money v. Pritzker, 2020 WL 1820660 (7th Cir. 2020).
At a minimum, the Ninth Circuit departed from its own precedent in Roman v. Wolf, where it issued a stay to the extent the injunction exceeded CDC Guidelines. Roman v. Wolf, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020). Furthermore, the Ninth Circuit contradicted other circuits that stayed similar injunctions to the extent they imposed obligations beyond CDC guidelines. See, e.g., Valentine, 956 F.3d at 801 (staying injunction that required specific measures that “go[] even further than CDC guidelines”); Swain, 958 F.3d at 1087–88 (staying preliminary injunction where CDC guidelines “formed the basis” of the district court’s required measures); see also Swain v. Junior, No. 2011622, 2020 WL 3167628, at *2 (11th Cir. June 15, 2020) (vacating preliminary injunction even though the scope of the district court’s injunction was “based largely on the CDC’s guidance”).
The CDC Guidelines are merely interim guidance for custodial
9

institutions, not a constitutional minimum for correctional institutions. See Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (holding that the guidance of outside organizations, including a Department of Justice Task Force, “simply do not establish the constitutional minima” and “are not determinative of the requirements of the Constitution”). The Ninth Circuit has effectively ruled that CDC Guidelines dictate a per se violation of the Eighth Amendment bar during a pandemic. Under the standard followed by the Fifth and Eleventh circuits, most, if not all of the mandates imposed by the district court here would be stayed in full or in part because they exceed the CDC Guidelines.
The District Court in this case found Applicants were objectively deliberately indifferent under the Fourteenth Amendment because they were “aware of the CDC Guidelines and able to implement them but fail[ed] to do so.” Indeed, “aware[ness]” is only a consideration under the subjective deliberate indifference standard—an Eighth Amendment test. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The District Court also determined that the law required Applicants to, “fully and consistently” apply the CDC guidelines, as well as its own additional Guidelines, to “abate the spread of infection.” ECF 65 at p. 17. Yet, the objective deliberate indifference standard merely examines whether a jail took “reasonable available measures to abate [the] risk,” Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). It does not inquire as to whether the Sheriff was “aware” of specific measures in the CDC Guidelines.
10

That said, it is entirely unclear what “full[] and consistent[]”
compliance with evolving CDC Guidelines would look like. The
opening of the recently-updated CDC Guidelines provides:
This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of the date of posting, July 14, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the CDC website periodically for updated interim guidance.
Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctionaldetention.html (last visited August 3, 2020) In bold letters in the section, “Who is the Intended Audience for
this Guidance?” it provides:
The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.
Id. Thus, adapting CDC Guidelines to “individual facilities’ physical
space, staffing, population, operations, and other resources and
conditions” is explicitly contemplated by, and is fully compliant with,
CDC Guidelines. Yet, the injunction at issue here dangerously scribes
in stone mitigation measures that are constantly evolving, leaving no
room for individualized adaptation, as clearly contemplated by the CDC
Guidelines. Applicants have no ability to pivot from an existing policy
11

due to the injunction issued by the District Court. The ruling prevents that which it requires: for the Jail to implement “its own additional guidelines, to ‘abate the spread of infection’.” ECF 65 at p. 17.
As noted in the Application, the Eighth Amendment and its “subjective deliberate indifference” standard applies to sentenced inmates. Farmer, 511 U.S. at 837. Directly contrasting with the ruling in the case at bar, the Fifth Circuit held that under the subjective deliberate indifference standard, a district court should not examine “whether the [d]efendants reasonably abated the risk of infection” or “how [the jail’s] policy is being administered.” Valentine, 956 F.3d at 802 (internal quotation marks omitted). Rather, where a prison took steps to mitigate the risk of contagion by increasing internal safety protocols, as here, it did not consciously “disregard[] the risk” to inmate health and safety, even if the actions sometimes fell short of the CDC guidelines. Id. at 801–03.
As noted in the Application, the outbreaks in Valentine and Wilson v. Williams, No. 20-3447, 2020 WL 3056217 were far more substantial (at least one inmate’s death was reported in Valentine, 140 S. Ct. at 1599, and at least six inmate deaths and other inmates on ventilators in Wilson, 2020 WL 3056217 at *2, *12.) By contrast Applicants had 302 of 369 of cases (81 percent) recover from COVID before the injunction was imposed, and not a single death due to COVID-19 in the Orange County Jail (which still remains true today.)
12

IV. CONCLUSION Applicants-Appellants respectfully urge a stay of the District
Court’s May 26, 2020, injunction to preserve the status quo allowing the Orange County Sheriff to adapt to changing circumstances on the ground, to keep inmates and staff safe during this pandemic, while the legal issue subject to a Circuit split is resolved on the merits below.
Respectfully submitted, LEON J. PAGE, COUNTY COUNSEL LAURA D. KNAPP,
SUPERVISING DEPUTY D. KEVIN DUNN, SENIOR DEPUTY REBECCA S. LEEDS,
SENIOR DEPUTY KAYLA N. WATSON, DEPUTY
Dated: August 3, 2020 By: __/S/______________________________ D. Kevin Dunn, Senior Deputy
Attorneys for Applicants-Defendants DON BARNES and ORANGE COUNTY, CALIFORNIA
13

 
 Cite as: 591 U. S. ____ (2020)

1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________
No. 20A19
_________________
DON BARNES, SHERIFF, ORANGE COUNTY, CALIFORNIA, ET AL. v. MELISSA AHLMAN, ET AL.
ON APPLICATION FOR STAY
[August 5, 2020]
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted, and the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE BREYER and JUSTICE KAGAN would deny the application.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from the grant of stay.
Today, this Court steps in to stay a preliminary injunction requiring Sheriff Don Barnes and Orange County (collectively, the Orange County Jail, or Jail) to implement certain safety measures to protect their inmates during the unprecedented COVID–19 pandemic. The injunction’s requirements are not remarkable. In fact, the Jail initially claimed that it had already implemented each and every one of them. Yet, apparently disregarding the District

2

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SOTOMAYOR, J., dissenting
Court’s detailed factual findings, its application of established law, and the fact that the Court of Appeals for the Ninth Circuit has twice denied a stay pending its review of the District Court’s order, this Court again intervenes to grant a stay before the Circuit below has heard and decided the case on the merits. See Little v. Reclaim Idaho, ante; at 1, and n. 1 (SOTOMAYOR, J., dissenting from grant of stay) (noting the frequency with which the Court has begun granting such stays). The Jail’s application does not warrant such extraordinary intervention. Indeed, this Court stays the District Court’s preliminary injunction even though the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place), even though the Jail misrepresented under oath to the District Court the measures it was taking to combat the virus’ spread, and even though the Jail’s central rationale for a stay (that the injunction goes beyond federal guidelines) ignores the lower courts’ conclusion that the Jail’s measures fell “well short” of the Centers for Disease Control and Prevention (CDC) Guidelines. 2020 WL 3547960, *4 (CA9, June 17, 2020).
I
The Orange County Jail currently houses a population of over 3,000 pretrial detainees and inmates. At the time of the District Court’s injunction, the Jail had witnessed an increase of more than 300 confirmed COVID–19 cases in a little over a month. The Jail, moreover, was well aware of the risk that the virus could spread rapidly through its congregate population and that addressing that risk would require certain precautionary measures. The District Court found that several organizations, including a group of Orange County Sheriff deputies, had “repeatedly warned . . . of the dangers from COVID–19 in the Jail.” ___ F. Supp. 3d ___, ___, 2020 WL 2754938, *12 (CD Cal., May 26, 2020). Indeed, the Jail claims that it sprang into action as soon as

Cite as: 591 U. S. ____ (2020)

3

SOTOMAYOR, J., dissenting
the Jail’s first documented case of COVID–19 appeared in March of 2020, collaborating closely with local health officials on preventative measures to contain the virus’ spread. When respondents brought suit, seeking an injunction that would require the Jail to implement a number of safety measures to protect inmates against the virus, the Jail told the District Court that such relief was not needed because it had, “at a minimum, already implemented all of the mitigation efforts” requested. Decl. of Joseph Balicki in No. 8: 20–cv–00835, Doc. 44–10, ¶ 2 (CD Cal., May 12, 2020) (Balicki Decl.); see also id., ¶ 9 (“There is not a single ‘mitigation effort’ outlined in Plaintiffs’ Complaint that has not already been implemented in the jails”). The Jail claimed that it had already achieved proper social distancing, provided inmates enough soap for frequent handwashing, and isolated and tested all symptomatic individuals.
Dozens of inmate declarations told a different story. Although the Jail had been warned that “social distancing is the cornerstone of reducing transmission of COVID–19,” Exh. B to Balicki Decl., Doc. 44–12, inmates described being transported back and forth to the jail in crammed buses, socializing in dayrooms with no space to distance physically, lining up next to each other to wait for the phone, sleeping in bunk beds two to three feet apart, and even being ordered to stand closer than six feet apart when inmates tried to socially distance. Moreover, although the Jail told its inmates that they could “best protect” themselves by washing their hands with “soap and water throughout the day,” Exh. C to Balicki Decl., Doc. 44–13, numerous inmates reported receiving just one small, hotel-sized bar of soap per week. And after symptomatic inmates were removed from their units, other inmates were ordered to dispose of their belongings without gloves or other protective equipment. Finally, despite the Jail’s stated policy to test and isolate individuals who reported or exhibited symptoms

4

BARNES v. AHLMAN

SOTOMAYOR, J., dissenting
consistent with COVID–19, multiple symptomatic detainees described being denied tests, and others recounted sharing common spaces with infected or symptomatic inmates.
II
Based on detailed factual findings, which the Ninth Circuit credited, the District Court concluded that the risk of harm in the Jail was “undeniably high.” ___ F. Supp. 3d, at ___, 2020 WL 2754938, *10. The court further determined that while the Jail may have formally adopted a policy to mitigate that risk, its actual compliance was “piecemeal and inadequate.” Ibid. On this evidence, the District Court held that respondents were likely to succeed in showing that the Jail was deliberately indifferent to the health and safety of its inmates and that it had violated federal disability rights law. In response, the court imposed a preliminary injunction that closely followed the CDC Guidelines for correctional and detention facilities.
This Court now stays that injunction, even though this case presents none of the typical indicia warranting certiorari. See Maryland v. King, 567 U. S. 1301, 1301 (2012) (ROBERTS, C. J., in chambers) (an applicant for a stay “must demonstrate (1) ‘a reasonable probability’ that this Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay’ ” (quoting Conkright v. Frommert, 556 U. S. 1401, 1402 (2009) (GINSBURG, J., in chambers))). The District Court and Ninth Circuit applied well-established law to the particular facts of this case to conclude that the Jail knew of and disregarded an “excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U. S. 825, 837 (1994). That conclusion is not clearly wrong. The Jail argues that, because it voluntarily released 53 percent of its population, it necessarily could not have been deliberately indifferent to the needs of its inmates. But the release of even a large

Cite as: 591 U. S. ____ (2020)

5

SOTOMAYOR, J., dissenting
number of inmates does not absolve the Jail of its responsibility for the health and safety of the roughly 3,000 individuals left behind. And while the Jail claims that it largely implemented the CDC Guidelines and radically increased hygiene and cleaning within its walls, the District Court, whose factual findings are owed deference, found the reality to be very different.1 The District Court concluded that by demonstrating the Jail’s failure to implement basic safety measures of which it was well aware, respondents had established a likelihood of success on their claim that the Jail had been deliberately indifferent to the serious risk COVID–19 posed to the health of its inmates.
Even if this Court disagrees with the District Court’s conclusion, “error correction . . . is outside the mainstream of the Court’s functions and . . . not among the ‘compelling reasons’ . . . that govern the grant of certiorari.” S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice §5.12(c)(3), p. 5–45 (11th ed. 2019); see also Farmer, 511 U. S., at 842 (noting that deliberate indifference is a “question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”). That is especially true where, as here, the Jail fails to contest an entirely independent and sufficient ground for the District Court’s injunction: respondents’ claims under federal disability rights law.
The Jail nonetheless argues that the Ninth Circuit created a certworthy circuit split because, in the Jail’s view, it endorsed a preliminary injunction that went beyond the CDC Guidelines. But no circuit split exists. Like other Circuits, the Ninth Circuit considered the Jail’s request for a stay by applying established law to the facts and equities before it. Its decision turned on the conclusion that, in prac-

—————— 1 Notably, the Jail has since resisted respondents’ attempts to verify
the Jail’s compliance with the District Court’s preliminary injunction.

6

BARNES v. AHLMAN

SOTOMAYOR, J., dissenting
tice, the Jail’s measures fell “well short” of the CDC Guidelines, not on whether the District Court’s injunction exceeded them. Indeed, in a case presenting different facts and equities, the Ninth Circuit recently stayed an injunction to the extent it exceeded the CDC Guidelines. See Roman v. Wolf, 2020 WL 2188048, *1 (CA9, May 5, 2020). Moreover, the Jail’s claim that “most of ” the injunction’s requirements exceed the CDC Guidelines is greatly exaggerated. Application for Stay 10. The Jail points to just two alleged discrepancies: first, that the District Court ordered the Jail to provide adequate spacing of six feet or more between incarcerated people, whereas the CDC Guidelines suggest only that six feet of space is “ ‘ideal[ ]’ ”; and second, that the injunction requires daily temperature checks and screening questions. Id., at 10–11. As to the former, the CDC Guidelines acknowledge that social distancing can be difficult in a correctional facility, but the Jail has not argued that its physical layout does not permit it.2 And as to the latter, as the Jail itself admits, the Guidelines provide for daily temperature checks in housing units where COVID–19 has been identified. Indeed, updated CDC Guidelines now recommend daily symptom and temperature screening in any correctional facility with a reported case.
The Jail also faces an uphill battle in its claim of irreparable harm. The measures it now decries as vexatious judicial micromanagement are the same measures that just months ago it claimed were, “at a minimum,” already being implemented. If the Jail is already doing everything required by the injunction, then what irreparable harm does
—————— 2 Moreover, the injunction directs the Jail to “provide adequate spacing
of six feet or more between incarcerated people so that social distancing can be accomplished in accordance with CDC guidelines,” ___ F. Supp. 3d ___, ___, 2020 WL 2754938, *14 (CD Cal., May 26, 2020), and therefore arguably requires the Jail to implement social distancing only to the extent required by the Guidelines.

Cite as: 591 U. S. ____ (2020)

7

SOTOMAYOR, J., dissenting
the injunction pose? And if it is not, and the Jail misrepresented its actions under oath to the District Court, then why should the Jail benefit from this Court’s equitable discretion? See Trump v. International Refugee Assistance Project, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 10) (“In assessing the lower courts’ exercise of equitable discretion, we bring to bear an equitable judgment of our own”). This Court normally does not reward bad behavior, and certainly not with extraordinary equitable relief.3 And while “[c]ourts must be sensitive to the . . . need for deference to experienced and expert prison administrators,” they “may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U. S. 493, 511 (2011).
* * *
At the time of the injunction, there were nearly 3,000 inmates still in the Jail’s care, 488 of whom were medically vulnerable to COVID–19. “[H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” must “ ‘take reasonable measures to guarantee the[ir] safety.’ ” Farmer, 511 U. S., at 832–833; see also Valentine v. Collier, 590 U. S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.) (slip op., at 6–7) (“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere
—————— 3 Given the nature of the “rare and exceptional” relief the Jail seeks,
Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O’CONNOR, J., concurring in denial of application), this Court has an independent obligation to weigh the equities. The Jail’s misrepresentations to the District Court are one factor to consider. Another is that on the very same day it asked this Court to intervene in its pending appellate proceedings, the Jail requested from the Ninth Circuit a 1-month extension to file its opening brief. One might wonder, then, whether the Jail’s need for relief is quite as urgent as the Jail makes out.

8

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SOTOMAYOR, J., dissenting
have been rendered vulnerable and often powerless to protect themselves from harm”). The District Court found that, despite knowing the severe threat posed by COVID– 19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease. Yet this Court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care. I respectfully dissent.

 
 Case: 20-55568, 09/04/2020, ID: 11813707, DktEntry: 41, Page 1 of 10
No. 20-55568
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MELISSA AHLMAN, et al., Plaintiffs-Appellees, v.
DON BARNES and ORANGE COUNTY, CALIFORNIA, Defendants-Appellants.
_______________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA NO. 8:20-cv-00835-JGB-SHK
_______________________________________ APPELLANTS’ OPPOSITION TO
APPELLEES’ MOTION TO DISMISS _______________________________________
LEON J. PAGE, COUNTY COUNSEL Laura D. Knapp, Supervising Deputy (SBN 162800)
D. Kevin Dunn, Senior Deputy (SBN 194604) Kayla N. Watson, Deputy (SBN 286423) 333 West Santa Ana Boulevard, Suite 407 Santa Ana, California 92701 Telephone: (714) 834-2057 Facsimile: (714) 834-2359 Email: kayla.watson@coco.ocgov.com Attorneys for Appellants-Defendants
i

Case: 20-55568, 09/04/2020, ID: 11813707, DktEntry: 41, Page 2 of 10
INTRODUCTION Appellees’/Plaintiffs’ Motion to Dismiss (Dkt. 37 1) seeks to have this Court directly undermine the ruling of the United States Supreme Court—in this very case. On August 5, 2020, the United States Supreme Court stayed the District Court’s preliminary injunction pending disposition on the merits of this appeal and any petition for writ of certiorari, if timely sought. Barnes v. Ahlman, 591 U.S. ____ (2020), No. 20A19; Dkt. 35, p. 1. The Supreme Court did not intervene on an emergency basis and grant a stay pending appeal on the merits, if the issues were about to be moot. And the Supreme Court could not have been clearer that it anticipated continued litigation of this issue on the merits. The Supreme Court’s stay provides:
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted, and the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Id. The “threshold consideration” that is “consistently required” for the issuance of a stay by the United States Supreme Court is whether there is a “reasonable probability” that certiorari will be granted by the Court. Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in
1 All references to ECF are to filings in the District Court case, while references to Dkt. are to filings in the Court of Appeals case.
1

Case: 20-55568, 09/04/2020, ID: 11813707, DktEntry: 41, Page 3 of 10
chambers). By granting a stay, not only is it clear that the high court found the issue on appeal to be of significant import and likely to recur, but also that at least four Justices are likely to grant certiorari, if sought. The Supreme Court’s ruling unequivocally indicates Appellants issues on appeal are ripe for consideration. This Court should deny Appellees’ Motion.
ARGUMENT “The test of mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event it decides the matter on the merits in his favor. If it grants such relief, the matter is not moot.” Farcia v. Lawn, F.2d 1400, 1402 (9th Cir. 1986) [emph. added]. “In general a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982). Appellants/Defendants have a legally cognizable interest in proceeding with this appeal. The District Court made findings that Appellants’ COVID-19 mitigation protocols at the jail constituted cruel and unusual punishment and issued an injunction that imposes irreparable harm on the Orange County Sheriff, the County of Orange, the inmates the injunction was meant to protect, and the public at large. For all the reasons stated in Appellants’ Opening Brief, (Dkt. 38) incorporated herein by reference, such findings and orders were clear legal error and this Motion must be denied and the appeal should proceed on the merits.
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Moreover, Appellees’ allegation that the injunction is moot because “Appellants’ challenge has expired by operation of law” is contrary to the definition of a stay. The injunction was issued on May 26, 2020. ECF 65. A stay was issued by the Supreme Court on August 5, 2020. Barnes v. Ahlman, 591 U.S. ____ (2020), No. 20A19. A stay specifically holds “a ruling in abeyance to allow an appellate court the time necessary to review it.” Nken v. Holder, 556 U.S. 418, 421 (2009). As such, the injunction was suspended in place before its alleged expiration date of August 24, 2020, and therefore, Appellee’s Motion is entirely without merit.
Even more, the Supreme Court issued an emergency stay specifically to allow this Court the time necessary to review the merits of the District Court’s findings. The Supreme Court is well aware of the Prison Litigation Reform Act (“PLRA”) and its elements. Nowhere in the Supreme Court’s order is mootness mentioned—even in dissent. The high court did not intervene only to have this Court declare the issue moot shortly after; Appellees’ advocacy of such a notion is absurd.
If Appellees/Plaintiffs were genuine in their legal position, they would first be filing a pleading in the district court for an order to terminate prospective relief. 28 U.S.C. § 3626(b), upon which Appellees rely in bringing this motion—entitled termination of prospective relief—in subsection (3), specifically limits termination of prospective relief. Explicitly directed by the statute that Appellees invoke is an opportunity by the district court to make continued findings. Appellees’
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Motion to Dismiss not only undermines the Supreme Court, it also endruns the district court that granted Appellees’ injunction in the first place. By filing this action in the appellate court, rather than district court, Appellees/Plaintiffs aver that they could not make a showing in the district court presently that prospective relief is necessary or legally supported. Because, if they were able to make that showing presently, they would have gone to the district court with such information. Until the district court is requested and finds that there is no ongoing violation of a federal right or until the Supreme Court lifts its stay, Appellees’ Motion is improper.
Next, if Appellees’ legal position were correct, nothing would prevent them from applying for another injunction in the district court, and another, thereby making the issue capable of repetition and accordingly, not moot, as relief from vexatious, repetitive prospective relief requests can be avoided by the appeal.
Appellees cite to the case of Mayweathers v. Terhune, 136 F. Supp. 2d 1152, 1153 for the proposition that the preliminary injunction expires as a matter of law after 90 days. However, Appellees fail to point out that in Mayweathers, “the court granted plaintiffs’ second motion for a preliminary injunction on identical grounds.” Id. Thereafter, the court went on to grant a third preliminary injunction on the same facts, stating that, “the process requires periodic reconsideration of the propriety of continued interim relief…” Id. at 1154. Here, the very basis of Appellants’ appeal is the findings made by
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the District Court which serve as the basis for the initial injunction. Without a review by this Court of the legal error committed below in making the findings to support the injunction, there is nothing preventing the District Court from entering a preliminary injunction every 90 days throughout the life of this case, continually repeating the legal error for which Appellants’ currently seek redress. Indeed, this is likely Appellees’/Plaintiffs’ planned next step in this litigation.
Appellees also cite to Calderon v. Moore, 518 U.S. 149, 150 (1996). Yet, Calderon does not support Appellees’ position at all. To the contrary, in Calderon, after the Court of Appeals dismissed the case as moot, the United States Supreme Court reversed the judgement of the Court of Appeals, granted the petition for writ of certiorari on the grounds that “even a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot.’” Id., at p. 150. “Because a decision in the State’s favor would release it from the burden of the new trial itself, the Court of Appeals is not prevented from granting ‘any effectual relief whatever’ in the State’s favor, Mills, supra, at 653, 16 S.Ct., at 133, and the case is clearly not moot.” Id. The fact that Appellees are raising this issue is a detailed illustration of why the merits of this case are ripe for adjudication by this Court—to prevent continued repetition of the legal error of which Appellants complain, and which the Supreme Court appears poised to grant certiorari.
Appellees effectively concede the gravamen of the legal issue on appeal by their arguments in their Motion to Dismiss—that there is no
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ongoing violation of a federal right under the PLRA, nor was there at the time of the injunction, and as such, the injunction was unwarranted and based on serious errors ab initio. The PLRA requires specific findings under subsection (a): that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. 13 U.S.C. § 3626 (a)(1). In arguing that the issues on appeal are moot, Appellees appear to concede that there is no legal basis for an injunction, that none of these elements under the PLRA exist, and never did—the substantive issues on the merits Appellants seek to adjudicate.
Lastly, Appellees’ flagrant misstatements must be addressed. Appellees state, “[b]riefing for this appeal has not moved expeditiously,” (Case No. 20-55568, Dkt. 37, p 2; Case No. 20-55668, Dkt. 11, p. 2) yet, they simultaneously “request that the Court ‘stay the schedule for record preparation and briefing pending the Court’s disposition of [this] motion.’ Cir. R. 27-11(a)(1).” Id. p. 1. Appellees continue to complain that, “Appellants then sought a 30-day extension of time to file an opening brief, which this Court granted.” Id. p. 2. Appellees stipulated to the 30-day extension of time. See Case No. 20-55568, Dkt. 21; Case No. 20-55668, Dkt. 8. “After receiving a second 30-day extension of time, Appellants filed an emergency application for a stay of the District Court’s injunction in the Supreme Court…” Case No. 2055568, Dkt. 37, p. 2; Case No. 20-55668, Dkt. 11, p. 2. Again, Appellees
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stipulated to the second 30-day extension of time about which they now complain. Case No. 20-55568, Dkt. 31. Appellees’ Motion to Dismiss is merely a gamesman’s attempt have this Court vacate the Supreme Court’s Order granting a stay of the injunction until the merits can be decided. The Motion to Dismiss should be denied.
CONCLUSION For the reasons stated herein, Appellees’ Motion to Dismiss should be denied.
Respectfully submitted, LEON J. PAGE, COUNTY COUNSEL KAYLA N. WATSON, DEPUTY Dated: September 4, 2020 By: __s/Kayla N. Watson________________ Kayla N. Watson, Deputy Attorneys for Appellants-Defendants DON BARNES and ORANGE COUNTY, CALIFORNIA
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CERTIFICATE OF SERVICE I certify that on September 4, 2020, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by and served the parties in the action [along with parties registered to receive NEF’s in CM/ECF] using the appellate CM/ECF system.

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ZOE BRENNAN-KROHN, ESQ. zbrennan-krohn@aclu.org;

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AMERICAN CIVIL LIBERTIES asmith@aclu.org;

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I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made.
Executed in Santa Ana, California this Fourth day of September, 2020.
_______/S/ Simon Perng__________ Simon Perng

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