Case 1:20-cv-10617 Document 1 Filed 03/27/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,

Petitioners-Plaintiffs, v.

THOMAS HODGSON, Bristol County Sheriff in his Official Capacity; STEVEN J. SOUZA, Superintendent Bristol County House of Corrections in his Official Capacity; TODD LYONS, Boston Field Office, Acting Director, Immigrations and Customs Enforcement in his Official Capacity; CHAD F. WOLF, Acting Secretary, Department of Homeland Security, in his Official Capacity; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director for U.S. Immigration and Customs Enforcement, in his Official Capacity; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,

Civil Action No.
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2241 AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Respondents-Defendants. _______________________________________

INTRODUCTION

1. This case presents a request for immediate relief on behalf of a putative class of

highly vulnerable Petitioner-Plaintiffs (“Plaintiffs”) – civil immigration detainees held by

Respondents-Defendants (“Defendants”) at the Bristol County House of Corrections and C. Carlos

Carreiro Immigration Detention Center (“Carreiro”) in North Dartmouth, Massachusetts

(hereinafter collectively “Bristol County Immigration Detention Facilities”) – who are at imminent

risk of contracting COVID-19, the lethal virus that is sweeping the globe and that feeds on precisely

the unsafe, congregate conditions in which Plaintiffs are being held.

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2. The coronavirus that causes COVID-19 infection – and death – has produced an unprecedented global pandemic. In only a few months, 529,093 people worldwide have been diagnosed with COVID-19 and more than 23,956 have died.1 The virus is highly contagious and lethal. By the time this Court reads this complaint, there will be more diagnoses, and more death, with no end in sight.
3. Despite repeated pleas from Plaintiffs and community advocates, and despite clear evidence that the dangerous conditions in the Bristol County Immigration Detention Facilities where Plaintiffs are confined will imminently result in the uncontrolled spread of COVID-19 and the likely death of many detainees including Plaintiffs, Defendants have continued to confine detainees in close proximity, without adequate soap, toilet paper, and other daily necessities; admit new detainees without COVID-19 testing or screening; deny access to testing and medical care for Plaintiffs and other detainees; and refuse to release even the most vulnerable detainees with medical conditions that heighten their risk for infection, sickness, and death.
4. These actions by Defendants are the result of two egregious errors: Defendants’ flawed policies and decision-making surrounding COVID-19; and the conditions and structure of immigration detention and confinement at Bristol County Immigration Detention Facilities.
5. Plaintiffs are subject to imminent infection, illness, and death because of their civil immigration detention – literally trapped, with no safe alternative available to them. Facility staff have rebuffed their inquiries about COVID-19 risks and precautions. Their confinement conditions and detention treatment have created a dangerous and hazardous situation that imminently threatens their lives, as well as the well-being of guards and others in the surrounding community, and the
1 John Hopkins University, Coronavirus Resource Center (March 26, 2020), https://coronavirus.jhu.edu/map.html; World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report (Mar. 26, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200326-sitrep-66-covid19.pdf?sfvrsn=81b94e61_2.
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general public. Immediate relief is necessary before the coronavirus ignites the tinderbox that is BCHOC and irreversible damage is done.
6. As putative class members have repeatedly expressed in pleas for help to Defendants, they are afraid for their lives. The only known effective measures to reduce the risk of COVID-19 are social distancing and hygiene. Yet “social distancing” is a meaningless term in BCHOC, where detainees are in constant close contact with each other and with Bristol County Immigration Detention Facilities staff. Hygiene is similarly unavailable and unavailing under the conditions at Bristol County Immigration Detention Facilities.
7. Plaintiffs are not being detained pursuant to a conviction. Rather, they are in civil detention awaiting the completion of immigration proceedings. Immigration and Customs Enforcement (“ICE”) has significant discretion to release immigration detainees, see 8 U.S.C. 1226(a), and has a long-standing practice of releasing for humanitarian reasons even those whose detention has been mandated under particular immigration detention statutes, see 8 U.S.C. 1182(d)(5); 1225(b); 1226(c). ICE regularly uses alternatives to detention to maintain custody and control over non-citizens in immigration proceedings, such as supervised release, electronic ankle monitors, home confinement, and telephonic monitoring.
8. The risks and consequences of COVID-19 cannot be understated. In the United States alone, 83,507 cases of infection have been reported and 1,201 people have died.2
9. The disease itself does not discriminate between the old and young. People of all ages, with and without preexisting conditions, have died.
2 John Hopkins University, Coronavirus Resource Center (March 26, 2020), https://coronavirus.jhu.edu/map.html; World Heath Organization, Coronavirus Disease 2019 (COVID-19) Situation Report tbl. 1 (Mar. 26, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200326-sitrep-66-covid19.pdf?sfvrsn=81b94e61_2.
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10. At the time of this filing there were 2,417 reported cases in Massachusetts3 including persons confined or working in correctional institutions.
11. At the time of this filing there were 1,012 reported cases in Connecticut.4 Many immigration detainees are brought to BCHOC from Connecticut.
12. There is no vaccine against COVID-19. 13. There is no known cure for COVID-19. 14. No one and no place is immune from COVID-19 infection, illness, and death. 15. The Centers for Disease Control and Prevention (“CDC”) reports that “[t]he best way to prevent illness is to avoid being exposed to this virus.” The CDC advises that COVID-19 is thought to spread mainly from person-to-person, between people who are in close contact with one another (within about 6 feet), and through respiratory droplets produced when someone speaks, coughs, or sneezes, including the touch of shared surfaces.5 16. States have taken extraordinary and unprecedented measures to ensure that residents practice “social distancing” in order to halt the spread of COVID-19. On March 23, 2020, Massachusetts Governor Charlie Baker ordered the closure of all non-essential businesses and advised residents to shelter in place. 17. The projections for those who contract the virus and those who succumb to the illness are startling and grave. The CDC has suggested that between 160 million and 210 million Americans could contract the disease. Based on mortality data and current hospital capacity, the number of deaths under the CDC’s estimates range from 200,000 to as many as 1.7 million. The
3 State of Massachusetts, COVID-19 Cases, Quarantine, and Monitoring (Mar. 26, 2020), https://www.mass.gov/infodetails/covid-19-cases-quarantine-and-monitoring. 4 State of Connecticut, COVID-19 Update March 26, 2020 (Mar. 26, 2020), https://portal.ct.gov//media/Coronavirus/CTDPHCOVID19summary3262020.pdf?la=en. 5 World Health Organization, Rolling updates on coronavirus disease (COVID-19) (Updated Mar. 20, 2020) https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen. 4 As of March 21, 2020 at 7:06 p.m. EST. See COVID-19 CORONAVIRUS PANDEMIC, WORLDOMETER (Mar. 21, 2020), https://www.worldometers.info/coronavirus/. 5 Id. 6 As of March 21, 2020 at 3:10p.m. EST.
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CDC projects that as many as 21 million people might need hospitalization, a daunting figure in a nation with just about 925,000 hospital beds.
18. Recognizing the urgency of present circumstances, judges, prosecutors and correctional authorities across the country have been ordering releases to protect individuals and the public health. Such releases not only protect the people with the greatest vulnerability to serious illness and death from COVID-19 from transmission of the virus, they also contribute to greater risk mitigation for all people in custody or working in a prison, jail, or detention center, and reduce the burden on the surrounding region’s limited hospitals and health care infrastructure, as they lessen the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.6
19. Law enforcement and jail officials in Los Angeles, Oakland, New Jersey, New York City, Cleveland, Nashville, Houston, San Antonio, Charlotte, and numerous other jurisdictions are releasing thousands of individuals - both civil detainees and, in many cases, people serving sentences for criminal convictions or pre-trial detainees, because of the threat COVID-19 poses inside jails.
20. Several recent court rulings have explained the health risks—to inmates, guards, and the outside community at large—created by large prison populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of immigrant detainee in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (ordering the release of inmate in Federal Bureau of Prisons custody due, in part, to risk posed by COVID-19 in the facility); In the Matter of the Extradition of Alejandro Toledo Manrique, Case No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal. March 19, 2020) (ordering change to conditions of bail for an individual to postpone incarceration, in part in light of
6 There are only four hospitals located in the entirety of Bristol County.
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risk of vulnerability to the coronavirus) United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020). On March 22 the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26.
21. Despite the directives from the CDC, the extraordinary measures being taken by government officials to ensure social distancing, and the lack of adequate medical and cleaning supplies, Defendants have failed to protect one of the most vulnerable populations: civil immigration detainees.
22. Defendants’ response to the threats the pandemic poses to immigrants has been abysmal and haphazard. Following public outcry, on March 17, 2020, ICE issued a statement that it would modify its enforcement efforts in apparent recognition of the need for alternatives to detention to protect public health.
23. The next day, however, in response to a lawsuit for the release of vulnerable ICE detainees in Washington state, the agency again demonstrated its failure to appreciate the threats the COVID-19 pandemic presents, stating that “Plaintiffs’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative.”7 ICE’s headin-the-sand response to the threats of this pandemic will prove deadly to immigrant detainees if it is not remedied through this Court’s intervention.
24. On March 19, 2020, two medical subject matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties blew the whistle to Congress, writing “regarding the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider releasing all
7 Respondents—Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020).
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detainees who do not pose an immediate risk to public safety.”8 On multiple occasions since at least February 25, 2020, these experts had sounded the alarm within the agency on the imminent risks to the health of immigrant detainees and the public at large presented by COVID-19 unless swift mitigation measures, including decreasing the number of immigrant detainees, are taken.
25. Instead, Defendant Hodgson, the Sheriff of Bristol County, issued a statement on March 19, 2020 noting that although 80% of the individuals detained at BCHOC are immunocompromised, and thus particularly vulnerable to exposure to COVID-19, he refused to take any measures to release anyone from custody.
26. Inside Bristol County Immigration Detention Facilities, Defendants are not consistently taking even the less aggressive precautionary measures the Department of Homeland Security (“DHS”) claims it is taking. To take one critical example, Defendants are introducing daily new detainees in with the general population without any mandatory quarantine period.
27. This echoes a concern of the two DHS medical experts, who say that “the track record of ICE facilities implementing [early screening, testing, isolation and quarantine] protocols historically has been inconsistent.” Moreover even if ICE was consistently taking these precautions, the DHS experts have explained that they “won’t be enough” without rapidly “releas[ing] those who do not pose an immediate danger to public safety.” Defendants stubbornly refuse to heed the advice of public health experts, including their own.
28. No “social distancing” has taken place in Defendants’ facilities – and it cannot. Plaintiffs are unaware of any meaningful safety measures enacted by Defendants since the inception of this crisis.
8 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-toCongress-Re.pdf (emphasis in original).
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29. Currently, there are approximately 57 immigration detainees at BCHOC in Unit B, and an unknown additional number of immigration detainees in Correira. All of them are at imminent risk. Their confinement conditions are a tinderbox, that once sparked will engulf the facility.
30. The inevitable viral spread in confined and crowded areas has already been evidenced by the rapid spread of COVID-19 in nursing homes and cruise ships. Detention facilities pose the same risk. “‘It’s a vulnerable situation,’ John Sandweg, an acting head of ICE during the Obama administration, told CBS News. ‘You have the exact situation everyone is cautioning against. You have a bunch of people contained in a very small environment.’…‘[c]an you imagine if you get an outbreak in these detention facilities? It’s going to spread like wildfire,’ Sandweg added. ”9
31. Plaintiffs, who are not subject to any form of punitive detention, are at risk because of Defendants’ flawed choices and the conditions in Bristol County Immigration Detention Facilities. Their failure to follow public health guidance endangers the lives of those Defendants have chosen to detain. Inevitably, one detainee will contract COVID-19, and its spread throughout the facility will be impossible to contain. The only way to effectively inhibit the spread of COVID19 and to protect Plaintiffs and others is to immediately release Plaintiffs, such that they can actually adhere to guidance from public health authorities and take the steps recommended by the government and medical professionals, and bar future immigrant admissions to the dangerous conditions at The only way to effectively inhibit the spread of COVID-19 and to protect Plaintiffs and others is to immediately release Plaintiffs, such that they can actually adhere to guidance from public health authorities and take the steps recommended by the government and medical
9 Camilo Montoya-Galvez, “Powder Kegs”: Calls Grow for ICE to Release Immigrants to Avoid Coronavirus Outbreak, CBS News (Mar. 19, 2020), https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak.
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professionals, and bar future immigrant admissions to the dangerous conditions at Bristol County Immigration Detention Facilities.
32. Defendants cannot justify continuing to subject Plaintiffs to extraordinary risk of illness and death with any legitimate government objective, particularly in light of the alternatives available to them to maintain custody and control over Plaintiffs. The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Plaintiffs bring this action on behalf of themselves and all other immigration detainees at Bristol County Immigration Detention Facilities, to remedy grave violations of their constitutional rights that imminently threaten them with serious illness and death.
33. Unless this Court intervenes to order the release of the Plaintiffs, they, along with many other detained individuals and outside communities, will face dramatically increased chances of contracting COVID-19, becoming seriously ill, and dying.
PARTIES 34. Petitioner-Plaintiff MARIA ALEJANDRA CELIMEN SAVINO is an immigration detainee in Correira. Ms. Celimen Savino suffers from asthma, a condition for which she has been previously hospitalized. She is at high risk for severe illness, exacerbated by the imminent risk of exposure to COVID-19 and the lack of safety precautions taken by Bristol County Officials or ICE. 35. Petitioner-Plaintiff JULIO CESAR MEDEIROS NEVES is a Brazilian national and immigration detainee in BCHOC. Mr. Medeiros Neves suffers from extreme depression and anxiety which has been exacerbated by the imminent risk of exposure to COVID-19 and the lack of safety precautions taken by BCHOC or ICE. He is one of the signatories to repeated pleas to ameliorate the situation made to Defendants by persons confined in Unit B.
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36. Respondent-Defendant THOMAS HODGSON is named in his official capacity as Sheriff of Bristol County where he maintains supervision and control over Bristol County Immigration Detention Facilities which detains named Plaintiffs and other civil immigration detainees.
37. Respondent-Defendant STEVEN J. SOUZA is sued in his official capacity as the Superintendent of Bristol County House of Corrections. He has custody of Plaintiffs because ICE contracts with Bristol County House of Corrections to house immigration detainees, including Plaintiffs.
38. Respondent-Defendant TODD LYONS is sued in his official capacity as the acting Boston Field Office Director for U.S. Immigration and Customs Enforcement. He has responsibility for and authority over the detention and removal of noncitizens within the Boston Region, which includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.
39. Respondent-Defendant CHAD WOLF is named in his official capacity as the acting Secretary of the U.S. Department of Homeland Security. Defendant Wolf is responsible for enforcing federal laws concerning, for example, border control and immigration, including the INA provisions at issue in this case. Defendant Wolf has direct authority over ICE, which is responsible for the civil detention of immigrants in the United States.
40. Respondent-Defendant MATTHEW T. ALBENCE is named in his official capacity as the acting Deputy Director and Senior Official Performing Duties of the Director for ICE. Defendant Albence oversees civil detention of immigrants in the United States.
VENUE 41. Venue in the District Court for the District of Massachusetts is proper under 28 U.S.C. § 1391(b) because Respondent-Defendant Hodgson resides in this District, PetitionersPlaintiffs are detained in this District, and this District is the site of the injury at issue.
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Case 1:20-cv-10617 Document 1 Filed 03/27/20 Page 11 of 25 JURISDICTION
42. Defendant-Respondent Hodgson and all Plaintiffs reside within the jurisdiction of this Court.
43. This case arises under the Fifth Amendment to the United States Constitution and the Rehabilitation Act, 29 U.S.C. § 794(a).
44. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346, 2201-02, and § 2241, and Article 1, Section 9, clause 2 of the United States Constitution.
45. The United States has waived sovereign immunity for this action for declaratory and injunctive relief against one of its agencies and that agency’s officers are sued in their official capacities. See 5 U.S.C. § 702.
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FACTS The COVID-19 Pandemic is Spreading Quickly and
Poses Grave Risk of Serious Illness and Death 46. The outbreak of COVID-19 has reached pandemic status. 47. COVID-19 is easily transmitted and the numbers of confirmed cases and deaths are expected to grow exponentially. 48. All human beings share an equal risk of contracting and, upon contraction, transmitting the virus that causes COVID-19. Any adult who contracts the virus may experience life-threatening symptoms and death. 49. New information regarding COVID-19 risk factors is released daily by public health authorities. Beyond the extreme risks to all, the categories of individuals who may have conditions or characteristics that predispose them to complications from COVID-19 are growing – and not fully identified by medical experts. 50. The COVID-19 virus can severely damage lung tissue, which requires an extensive period of hospitalization and rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. More is learned each passing day about the extent of permanent injury that may be caused by COVID-19. 51. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work. 52. People of all ages and medical backgrounds who have experienced serious cases of COVID-19 describe painful symptoms, including vomiting, severe diarrhea, relentless shivering, and suffocating shortness of breath.
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53. Emerging evidence suggests that COVID-19 can also trigger an over-response of the immune system further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.
54. These complications can manifest at an alarming pace. Individuals can show the first symptoms of COVID-19 infection in as little as two days after exposure, and their condition can seriously deteriorate in five days or sooner.
55. People can also spread COVID-19 but be asymptomatic making testing or seclusion of only those who are symptomatic an ineffective solution.
56. Most people who develop serious illness will need advanced support. This level of supportive care requires highly specialized equipment that is in limited supply, even in non-detention settings, and an entire team of dedicated medical care providers.
57. People who experience serious cases of COVID-19 who do not die should expect a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity.
58. There is no vaccine against COVID-19, nor is there any known medication to prevent or treat infection. The only known effective measures to reduce the risk for vulnerable people from illness, injury or death from COVID-19 are to prevent them from being infected in the first place, and to limit community spread. Social distancing or remaining physically separated from known or potentially infected individuals, and vigilant sanitation and hygiene, including repeatedly and thoroughly hand washing with soap and water, are the only known effective measures for protecting people from COVID-19
59. Nationally, projections by the CDC indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention with as many as 1.5 million deaths in the most severe projections.
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60. In recent days, the number of reported cases of infection in many parts of the country, including the Boston metropolitan area, have shown a frightening and exponential increase, and numerous media outlets and public officials estimate that the reported number of deaths could soon follow suit.
People Detained at Bristol County House of Corrections are at an Elevated Risk of COVID-19 Transmission, Infection and Illness.
61. Bristol County Immigration Detention Facilities confine civil immigration detainees in BCHOC Unit B, and the Correira.
62. Currently there are approximately 57 detainees held on civil immigration violations in Unit B, and an additional unknown number of civil immigration detainees in Correira.
63. As Plaintiff Medeiros Neves and numerous other BCHOC Unit B detainees wrote to Defendant Hodgson and others in a March 18, 2020 letter (See Exhibit A), the most recent detainee was admitted on March 17, 2020 – well within the time when Defendants and the general public were well aware of the rapid spread of COVID-19.
64. As Plaintiff Medeiros Neves and other detainees also pointed out in their March 18, 2020 plea for help, a note was posted in Unit B by Defendant Hodgson’s office explicitly stating that “…Given the close quarters and need for daily contact, our correctional facilities and jail are extremely vulnerable for residents, staff, volunteers and visitors to be infected.” Id. This concession is unsurprising given the grim realities of BCHOC.
65. In institutional settings with close quarters such as BCHOC, people are at imminent risk of severe COVID-19 infection, illness and death. Immigration detention facilities are “congregate environments,” places where people live and sleep in close proximity.
66. Infectious diseases that are communicated by air or touch are more likely to spread in these confined settings and crowded environments. This presents an imminent danger for the spread of COVID-19 to Plaintiffs.
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67. The conditions of immigration detention facilities pose a heightened public health risk for the spread of COVID-19 that is even greater than non-carceral institutions. Immigration detention facilities have even greater risk of infectious spread because of overcrowding, the high proportion of vulnerable people detained, limited access to hygiene products, and scant medical resources. People live in close quarters and cannot achieve the social distancing needed to effectively prevent the spread of COVID-19. Plaintiffs will find it impossible to maintain the recommended distance of 6 feet from others. They must also share or touch objects used by others.
68. As Petitioner-Plaintiff Medeiro Neves and other civil detainees detailed in the March 23 letter (See Attached Exhibit B):
a. Beds in the facility where detainees sleep are situated only 3 feet apart. b. Meals are inadequate and eaten in close quarters. c. Symptomatic guards have entered the premises and interacted with detainees. 69. On information and belief, no meaningful changes to the hygienic or sanitary policies, products or facilities have been made since the March 23 letter. 70. On information and belief, BCHOC facilities lack adequate soap, toilet paper, and medical resources and infrastructure to address the spread of infectious disease or to treat people most vulnerable to illness. 71. Detention centers are integral components of the public health systems in the communities in which they are located. If detainees contract COVID-19 in such a facility, they will require hospitalization in the community threatening to overwhelm local resources. This problem is particularly acute in smaller communities, such as North Dartmouth, Massachusetts, where the Bristol County detention facility is located. Surrounding communities will be unable to provide adequate medical treatment to infected persons.
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72. Moreover, as a result of profound stress and helplessness, immigrant detainees are at risk of having suppressed immune systems putting them at higher risk than the general population of contracting and potentially having more serious infections. Stress and its link to immunosuppression are well documented in the medical literature.
73. The physical and mental health and well-being of detained immigrants, independent of age or underlying conditions, is worsened and severely harmed by continued immigration detention during the COVID-19 pandemic. All immigrant detainees are at high risk of developing severe, disabling psychological symptoms and distress as a result of their continued immigration detention during the COVID-19 pandemic.
74. Individuals with underlying mental health conditions are at a high risk of harm from coronavirus. Individuals suffering from mental health conditions including depression, anxiety, schizophrenia and posttraumatic stress disorder (PTSD) are at particularly high risk of worsening of their symptoms as a result of being detained amid the coronavirus pandemic.
75. For instance, Harlan Perez is an immigration detainee in Unit B at BCHOC who suffers from schizophrenia, anxiety and depression. See Perez v. Souza, No. 1:20-cv-10414-PBS (D.Mass.), ECF No. 1 at ¶ 2. Such exacerbation of psychological symptoms can result in severe harm. For example, individuals with depression are at increased risk of suicidality.
ICE’s Responses to COVID-19 and Its Inadequate Healthcare System Will Not Protect Plaintiffs
76. ICE issued an “Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19)” and has established a webpage entitled “ICE Guidance on COVID- 19.” These documents (collectively the “ICE Protocols”) will not protect Plaintiffs. The protocols also do not address: imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues.
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77. Further, there is substantial evidence that ICE’s COVID-19 protocols are not being followed in detention centers throughout the country, including Bristol County Immigration Detention Facilities, and that ICE is otherwise failing to provide an adequate response, which exacerbates the risk of harm to Plaintiffs.
78. Evidence further establishes that these serious defects are far from anomalous, but rather systemic in nature. Indeed, the attached declarations paint an alarming picture of ICE’s inadequate responses to COVID-19 across the entire country, including failures to: test for COVID19, provide basic and necessary sanitation supplies such as hand sanitizer, check symptoms, provide necessary education about COVID-19 to detained people and staff, provide people with protective gear (e.g., masks), increase medical staffing, respond to sick calls, and assess medically vulnerable detained people and increase precautionary measures. As a direct consequence, medically vulnerable people feel like they are “sitting ducks” and are “scared for [their] life.”.
79. Importantly, the COVID-19 pandemic—and ICE’s unreasonable response to it— will significantly strain ICE’s already broken medical care system. Long before the COVID-19 outbreak, numerous reports (including by DHS itself) have identified serious and substantial flaws in ICE’s medical care system. For example, a 2017 OIG report that assessed care at certain ICE facilities identified “long waits for the provision of medical care[.]”10 Other reports echo these alarming findings about substandard medical care in ICE facilities.11
10 Off. of Inspector Gen., Off. of Homeland Sec., OIG-18-32: Concerns About ICE Detainee Treatment and Care at Detention Facilities, at 7 (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf. 11 See, e.g., U.S. Gov’t Accountability Off. GAO-16-23: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med. Care (Feb. 2016), https://www.gao.gov/assets/680/675484.pdf; Human Rts. Watch, Am. Civil Liberties Union, Nat’l Immigr. Just. Ctr. & Det. Watch Network, Code Red: The Fatal Consequences of Dangerously Substandard Med. Care in Immigr. Det, at 15, 19, 25, 46 (June 2018), https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; Human Rts. First, Prisons and Punishment: Immigr. Det. in Cal., at 10-13 (Jan. 2019), https://www.humanrightsfirst.org/sites/default/files/Prisons_and_Punishment.pdf; J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Pub., PROPUBLICA (Mar. 20, 2020), available at https://www.propublica.org/article/ice-has-repeatedly-failed-tocontain-
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The Only Way to Reduce the Risk of A COVID-19 Outbreak at BCHOC is to Immediately Reduce the Population at the Facility by Release.
80. Risk mitigation is the only known strategy that can protect people from COVID-19, and Defendants through actions and statements have demonstrated that they are unwilling and unable to implement meaningful risk mitigation measures. Accordingly, public health experts with experience in immigration detention and correctional settings have recommended that detention centers immediately reduce their populations.
81. Furthermore, the routine practice of transferring immigrant detainees from one facility to another, throughout the nationwide immigration detention network, makes the likelihood of COVID-19 spread and infection even more likely. Given such conditions and practices, one would be hard-pressed to think of a more effective means for the spread of COVID-19 infection than immigration detention.
82. Plans for separating suspected COVID-19 exposed or infected individuals within a given facility or by transferring to specialized quarantine facilities is neither effective nor feasible as a response to the threat of infection or infectious spread within a detention facility.
83. As per CDC guidelines, when individuals become symptomatic and considered “at risk” of being infected with/contagious to others for COVID-19, they are supposed to self-isolate, not isolate within groups. Putting individuals with symptoms in a group-like isolation setting risks to those who were not infected with COVID-19, despite having similar symptoms to those who may be infected. In other words, for individuals who did not have COVID-19 before being placed in be infected. In other words, for individuals who did not have COVID-19 before being placed in group
contagious-diseases-our-analysis-shows-its-a-danger-to-the-public (analysis of DDRs demonstrates that ICE facilities have “long histories of mishandling infectious diseases that can rapidly spread outside their walls.”).
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isolation, many may contract COVID-19. This is exacerbated by substantial and increasing limitations on access to testing, even for those who have symptoms of COVID-19, because of a major shortage of testing materials. It would be unlikely that in these immigration detention facilities, all who are symptomatic could be tested prior to any form of group isolation.
Class Action and Representative Habeas Allegations 84. Respondent-Defendants have continued to hold and admit civil immigration detainees to BCHOC despite the warnings of the CDC and medical community and despite their inability to manage an outbreak if one were to occur. 85. All individuals in BCHOC and Carreiro are subject to this same disregard for health and safety and are subject to the same policies of confinement and hygiene. 86. Petitioner-Plaintiffs Celimen Savino and Medeiro Neves seek certification of a class under Federal Rule of Civil Procedure 23, to challenge Defendants’ detention of civil ICE detainees at BCHOC during the current COVID-19 pandemic, or in the alternative certification of the proposed class as a representative habeas class. See United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) 87. Plaintiffs Celimen Savino and Medeiro Neves seek certification of a class consisting of all individuals who are now or will be held in civil immigration detention in BCHOC. -Plaintiffs satisfy all of the requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy—as well as those of Rule 23(b)(2). 88. Numerosity - The proposed representative class is sufficiently numerous as to make joinder impracticable. The numerosity requirement imposes only a “low threshold,” GarciaRubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009), such that “a class size of forty or more will generally suffice in the First Circuit.” Reid v. Donelan, 297 F.R.D. at 189. There are substantially more than forty civil immigration detainees currently being held at BCHOC.
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89. Commonality - The proposed representative class presents common questions of law and fact, including (1) whether civil detention in a manner likely to result in the life-threatening infection of detainees violates constitutional protections; and (2) whether in the face of the COVID19 pandemic, the conditions of confinement at BCHOC fail to ensure the detainees’ safety and health in a manner that amounts to punishment.
90. Typicality - Plaintiffs Celimen Savino and Medeiro Neves’ claims are typical of the representative class they seek to represent. Like all class members, both Ms. Celimen Savino and Mr. Medeiro Neves are currently (1) civilly detained in immigration detention in Bristol County Immigration Detention Facilities; (2) subject to the close confinement and lack of hygiene that characterize immigration detention at Bristol County Immigration Detention Facilities and; (3) subject to infection, illness, and death from COVID-19 were it to spread.
91. Adequacy - Petitioner-Plaintiffs are able to fairly and adequately protect the interests of the proposed representative class. Undersigned counsel at Lawyers for Civil Rights and the Jerome N. Frank Legal Services Organization at Yale Law School have extensive experience litigating complex civil rights matters, immigration cases, and class action lawsuits.
92. Defendants have acted or refused to act on grounds that apply generally to the class. Moreover, because members of the proposed representative class all seek the same relief, this relief is appropriate respecting the class as a whole to ensure that members of the proposed are given consistent relief and to satisfy the health and safety standards at the core of their challenge.
93. Plaintiffs and members of the proposed class seek a writ of habeas corpus to remedy their unconstitutional detention in life-threatening conditions at Bristol County Immigration Detention Facilities.
STATEMENT OF RELATED CASE 94. Petitioners Celimen Savino and Medeiro Neves state that, pursuant to Local
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Rule 40.1(g), this Petition for a Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief is related to Reid v. Donelan, No. 3:13-cv-30125-PBS (D. Mass.) and Brito v. Barr, No. 1:19-cv-11314-PBS (D. Mass.).
95. Per Local Rule 40.1(g)(1), “some or all of the parties are the same.” The Director of the Boston Field Office of Immigration and Customs Enforcement and the current Bristol County Sheriff, Thomas M. Hodgson, are defendants in Reid and in the present petition, and the Superintendent of BCHOC Souza, the Secretary of DHS, and the Director of ICE are defendants in Brito.
96. Additionally, this case involves “the same or similar claims or defenses,” Local Rule 40.1(g), as those at issue in Reid and Brito, including allegations that the incarceration of civil immigration detainees in Massachusetts violates the Fifth Amendment.
97. In addition, some members of the Brito and Reid classes, and persons who will vest into the Reid class when their detention lasts six months, are detained now at BCHOC, and as such are members of the proposed class herein as well.
CLAIMS FOR RELIEF Count I (Violation of Fifth Amendment Right to Due Process--Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement as to All
Defendants) 98. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 99. The Fifth Amendment to the U.S. Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The government violates this substantive due process right when it subjects civil detainees to treatment and conditions of confinement that amount to punishment or does not ensure the detainees’ safety and health.
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100. Defendants have subjected Plaintiffs to conditions of confinement that include the imminent risk of contracting COVID-19, for which there is no vaccine, known treatment, or cure.
101. Defendants are subjecting Plaintiffs to imminent risk of physical, emotional and mental harm in violation of Plaintiffs’ rights under the Due Process Clause.
102. Defendants continue to admit new ICE detainees to Bristol County Immigration Detention Facilities, in reckless disregard of and deliberate indifference to the dangerous conditions there and the inability of Bristol County Immigration Detention Facilities to provide minimal protection against COVID-19.
103. As public health experts in correctional medical care and infectious disease agree, individuals and families in immigration detention are at grave risk of COVID-19 infection.
104. Alternatives are available that would preserve and protect both Plaintiffs’ health and well-being and that of the broader community. Release either on personal recognizance or subject to monitoring or supervision would cause no burden on Defendants and would place Plaintiffs at substantially lower risk of contracting COVID-19, with all of its attendant threats to health and life.
105. Accordingly, Defendants are subjecting Plaintiffs to detention conditions that amount to punishment and that fail to ensure their safety and health.
Count II (Violation of the Rehabilitation Act – Failure to Provide Reasonable Accommodation to Persons with Disabilities)
106. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a).
107. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a).
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108. The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
109. The removal proceedings are a benefit or program administered by DHS and Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Plaintiffs receive substantial federal financial assistance.
110. Plaintiffs’ underlying medical conditions, and those of other members of the proposed class of all immigration detainees who are or will be held at Bristol County Immigration Detention Facilities, qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
111. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
112. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
113. By failing to provide Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Plaintiffs.
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Case 1:20-cv-10617 Document 1 Filed 03/27/20 Page 24 of 25
114. The only available “reasonable accommodation” that would mitigate Plaintiffs’
disability is release from detention. Defendants have failed to implement this reasonable
accommodation, which would not be unduly burdensome nor require a fundamental alteration in
the removal process or the programs and activities of the detention center.
115. Defendants’ ongoing detention of Plaintiffs constitutes discrimination because it is
either disparate treatment of, or at the very least has a disparate impact on, people with qualifying
disabilities who are at severe risk of serious illness or death if they were to contract COVID-19.
116. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the
Rehabilitation Act.
PRAYER FOR RELIEF Plaintiffs respectfully request this Court to:
1. Issue a Writ of Habeas Corpus and order the immediate release of Plaintiffs or placement in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
2. In the alternative, issue injunctive relief ordering the immediate release of Plaintiffs and all similarly situated detainees in Bristol County Immigration Detention Facilities with appropriate precautionary measures.
3. Immediately order Defendants to implement public health guidance and protocols designed to prevent the transmission of COVID-19;
4. Prohibit the placement of new detainees in Bristol County Immigration Detention Facilities until all public health protocols designed to prevent the transmission of COVID-19 have been implemented;
5. Require Defendants to immediately effectuate the release of Plaintiffs and all similarly situated detainees as BCHOC upon the posting of the appropriate bond, if bond was previously set by ICE or an Immigration Judge;
6. Declare that Defendants’ detention of Plaintiffs is unconstitutional in violation of the Fifth Amendment and/or the Rehabilitation Act;
7. Award Plaintiffs their costs and reasonable attorneys’ fees; and
8. Grant such further relief as the Court deems justice to require.
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Case 1:20-cv-10617 Document 1 Filed 03/27/20 Page 25 of 25
/s/Oren Nimni Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045)
Ivan Espinoza-Madrigal† Lawyers for Rights
61 Batterymarch Street 5th Floor Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
B. Rey, Law Student Intern* Megan Yan, Law Student Intern*
Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
† Motion for admission pro hace vice forthcoming. * Motion for Law Student Appearance forthcoming.
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 United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:20-cv-10617-WGY

Savino et al v. Hodgson et al Assigned to: Judge William G. Young related Cases: 1:21-cv-10060-WGY
1:20-cv-10644-WGY Case in other court: USCA - First Circuit, 20-01564
USCA - First Circuit, 20-01626 USCA - First Circuit, 20-01768 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 03/27/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
Maria Alejandra Celimen Savino All those similarly situated

represented by Ivan Espinoza-Madrigal Lawyers Committee for Civil Rights and Economic Justice 61 Batterymarch St, 5th Floor Boston, MA 02210 (617) 482-1145 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Muneer I. Ahmad Jerome N. Frank Legal Services Organization, Yale Law School 127 Wall Street New Haven, CT 06520-0652 203-432-4716 Fax: 203-432-1426 Email: muneer.ahmad@ylsclinics.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Oren N. Nimni 61 Batterymarch Street 5th Floor Boston, MA 02110 206-200-9088 Email: onimni@lawyerscom.org LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Reena Parikh Boston College Legal Services LAB 885 Centre Street Newton, MA 02459 617-552-0283 Email: parikhre@bc.edu TERMINATED: 07/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Zampierin Worker and Immigrant Rights Advocacy Clinic Yale Law School P.O Box 209090 New Haven, CT 06520-9090 203-436-8971 Fax: 203-432-1246 Email: sara.zampierin@ylsclinics.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andres R. O'Laughlin Wilmer Hale LLP 60 State Street Boston, MA 02109 612-526-6220 Email: andy.olaughlin@wilmerhale.com ATTORNEY TO BE NOTICED
Annaleigh E. Curtis Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6694 Email: annaleigh.curtis@wilmerhale.com ATTORNEY TO BE NOTICED
Elizabeth E. Driscoll Wilmer Cutler Pickering Hale and Dorr

LLP (Bos) 60 State Street Boston, MA 02109 617-526-6576 Email: elizabeth.driscoll@wilmerhale.com ATTORNEY TO BE NOTICED
Felicia H. Ellsworth Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617-526-6000 Fax: 617-526-5000 Email: felicia.ellsworth@wilmerhale.com ATTORNEY TO BE NOTICED
Gary B. Howell-Walton Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6601 Email: gary.howellwalton@wilmerhale.com ATTORNEY TO BE NOTICED
John J. Butts Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6000 Fax: 617-526-5000 Email: john.butts@wilmerhale.com ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6388 Fax: 617-526-5000 Email: lisa.pirozzolo@wilmerhale.com ATTORNEY TO BE NOTICED

Michael J. Brown Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617-526-6310 Email: mike.brown@wilmerhale.com ATTORNEY TO BE NOTICED
Michael J. Wishnie Yale Law School 127 Wall Street New Haven, CT 06511 203-432-4800 Email: michael.wishnie@yale.edu ATTORNEY TO BE NOTICED
Mikayla C. Foster Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-0427 Email: mikayla.foster@wilmerhale.com ATTORNEY TO BE NOTICED
Nicole M.F. Dooley Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617-526-6057 Email: nicole.fontainedooley@wilmerhale.com ATTORNEY TO BE NOTICED
Oren M. Sellstrom Lawyers' Committee for Civil Rights and Economic Justic 61 Batterymarch Street, 5th Flr. Boston, MA 02110 617-988-0608 Email: osellstrom@lawyerscom.org ATTORNEY TO BE NOTICED
Rama S. Attreya Wilmer Hale LLP

Petitioner
Julio Cesar Medeiros Neves All those similarly situated

60 State Street Boston, MA 02109 617-526-6347 Email: rama.attreya@wilmerhale.com ATTORNEY TO BE NOTICED
Vinita Ferrera Wilmer Hale LLP 60 State Street Boston, MA 02109 617-742-9100 Fax: 617-526-5000 Email: vinita.ferrera@wilmerhale.com ATTORNEY TO BE NOTICED
represented by Ivan Espinoza-Madrigal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Muneer I. Ahmad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reena Parikh (See above for address) TERMINATED: 07/14/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Zampierin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Andres R. O'Laughlin (See above for address) ATTORNEY TO BE NOTICED
Annaleigh E. Curtis (See above for address) ATTORNEY TO BE NOTICED
Elizabeth E. Driscoll (See above for address) ATTORNEY TO BE NOTICED
Felicia H. Ellsworth (See above for address) ATTORNEY TO BE NOTICED
Gary B. Howell-Walton (See above for address) ATTORNEY TO BE NOTICED
John J. Butts (See above for address) ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED
Michael J. Brown (See above for address) ATTORNEY TO BE NOTICED
Michael J. Wishnie (See above for address) ATTORNEY TO BE NOTICED
Mikayla C. Foster (See above for address) ATTORNEY TO BE NOTICED
Nicole M.F. Dooley (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address)

V. Respondent Thomas M. Hodgson Bristol County Sheriff in his Official Capacity TERMINATED: 03/29/2020
Respondent Steven J. Souza Superintendent Bristol County House of Corrections in his Official Capacity

ATTORNEY TO BE NOTICED
Rama S. Attreya (See above for address) ATTORNEY TO BE NOTICED
Vinita Ferrera (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas E. Kanwit United States Attorney's Office Suite 9200 1 Courthouse Way John Joseph Moakley Federal Courthouse Boston, MA 02210 617-748-3271 Fax: 617-748-3951 Email: thomas.kanwit@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael P. Sady United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3362 Fax: 617-748-3971 Email: michael.sady@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas E. Kanwit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Todd Lyons Boston Field Office, Acting Director, Immigrations and Customs Enforcement in his Official Capacity TERMINATED: 03/29/2020
Respondent
Chad F. Wolf Acting Secretary - Department of Homeland Security - Official Capacity TERMINATED: 03/29/2020
Respondent

Christina Parascandola United States Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097 Email: christina.parascandola@usdoj.gov ATTORNEY TO BE NOTICED
Michael Fitzgerald United States Attorney's Office MA 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3266 Email: Michael.fitzgerald2@usdoj.gov ATTORNEY TO BE NOTICED
Michelle M. Ramus United States Department of Justice Civil Division Office of Immigration Litigation Washington, DC 20044 202-598-3267 Email: michelle.m.ramus@usdoj.gov ATTORNEY TO BE NOTICED
represented by Thomas E. Kanwit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas E. Kanwit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew T. Albence Deputy Director and Senior Official Performing the Duties of the Director for U.S. Immigration and Customs Enforcement, in his Official Capacity TERMINATED: 03/29/2020
Respondent
U.S. Immigration and Customs Enforcement (ICE) TERMINATED: 03/29/2020
Amicus
Rick Raemisch

represented by Thomas E. Kanwit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas E. Kanwit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William W. Fick Fick & Marx LLP 24 Federal Street, 4th Flr. Boston, MA 02110 857-321-8360 Email: wfick@fickmarx.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/27/2020
03/27/2020 03/27/2020

# Docket Text
1 Petition For Writ of Habeas Corpus Pursuant To 28 U.S.C. 2241 and For Declaratory and Injunctive Relief Filing fee: $ 400, receipt number 0101-8172787 (Fee Status: Filing Fee paid), filed by JULIO CESAR MEDEIROS NEVES, MARIA ALEJANDRA CELIM SAVINO. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet Attachment - Additional Counsel, # 3 Category Sheet, # 4 Exhibit A, # 5 Exhibit B)(Nimni, Oren) (Attachment 1 replaced on 3/27/2020) (Vieira, Leonardo). (Modified on 3/27/2020 to Correct Docket Text as Counsel Filed the 2241 Habeas Under the Wrong Event in CM/ECF) (Paine, Matthew). (Entered: 03/27/2020)
2 NOTICE of Appearance by Michael J. Wishnie on behalf of JULIO CESAR MEDEIROS NEVES, MARIA ALEJANDRA CELIM SAVINO (Wishnie, Michael) (Entered: 03/27/2020)
3 ELECTRONIC NOTICE of Case Assignment. Judge Patti B. Saris assigned to case. (Finn, Mary) (Entered: 03/27/2020)

03/27/2020
03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020
03/27/2020
03/27/2020 03/27/2020

4 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Vieira, Leonardo) (Entered: 03/27/2020)
5 NOTICE of Appearance by Oren M. Sellstrom on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Sellstrom, Oren) (Entered: 03/27/2020)
6 General Order 19-02, dated June 1, 2019 regarding Public Access to Immigration Cases Restricted by Federal Rule of Civil Procedure 5.2(c). (Lara, Miguel) (Entered: 03/27/2020)
7 Judge Patti B. Saris: ORDER entered. STANDING ORDER on 2241 petitions regarding detention and removal of the Petitioner from the District of Massachusetts. (Lara, Miguel) (Entered: 03/27/2020)
8 Judge Patti B. Saris: ELECTRONIC ORDER VACATING re 7 Standing Order on 2241 petitions - Alien Detainee, 6 General Order 1902. (Lara, Miguel) (Entered: 03/27/2020)
9 Judge Patti B. Saris: ELECTRONIC ORDER entered. Pursuant to L.R. 40.1(g)(1) and (4), I find that this case is not related to 19-cv-11314PBS or 13-cv-30125-PBS and therefore was erroneously assigned to me. The case is returned to the Clerk for random reassignment. (Lara, Miguel) (Entered: 03/27/2020)
10 ELECTRONIC NOTICE of Case RE-Assignment. Judge William G. Young assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Finn, Mary) (Entered: 03/27/2020)
11 MOTION for Temporary Restraining Order by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 03/27/2020)
12 MEMORANDUM in Support re 11 MOTION for Temporary Restraining Order filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Keller Declaration, # 2 Gonsalves Declaration, # 3 Alkalay Declaration, # 4 MenjivarRojas Declaration, # 5 Francisco Declaration, # 6 Ortiz Declaration, # 7 Leyva Declaration, # 8 Neves Declaration, # 9 Savino Declaration, # 10 Sellstrom Declaration, # 11 Proposed Order)(Sellstrom, Oren) (Entered: 03/27/2020)

03/27/2020 03/27/2020 03/28/2020 03/28/2020
03/28/2020 03/28/2020 03/28/2020 03/29/2020 03/29/2020

13 MOTION to Certify Class by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 03/27/2020)
14 MEMORANDUM in Support re 13 MOTION to Certify Class filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Declaration of Oren Sellstrom, # 2 Declaration of Michael Wishnie)(Sellstrom, Oren) (Entered: 03/27/2020)
15 MOTION for Leave to Appear Pro Hac Vice for admission of Reena Parikh Filing fee: $ 100, receipt number 0101-8174505 by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Affidavit of Reena Parikh)(Wishnie, Michael) (Entered: 03/28/2020)
16 ELECTRONIC NOTICE Setting Hearing on Motion 11 MOTION for Temporary Restraining Order : Motion Hearing set for 3/30/2020 11:00 AM before Judge William G. Young. This hearing will be held via Zoom. Counsel for the plaintiff shall notify defense counsel of this hearing and inform the clerk via email who counsel for the defendants is so that a zoom meeting invitation can be sent to all participants. (Gaudet, Jennifer) (Entered: 03/28/2020)
17 Judge William G. Young: ELECTRONIC ORDER entered. "Respondents shall file a status report by 5:00 p.m. on Sunday, March 29, 2020." (PSSA, 5) (Entered: 03/28/2020)
18 MOTION for Leave to Appear Pro Hac Vice for admission of Ivan Espinoza-Madrigal Filing fee: $ 100, receipt number 0101-8174560 by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Affidavit Espinoza PHV Aff.)(Nimni, Oren) (Entered: 03/28/2020)
19 NOTICE of Appearance by Thomas E. Kanwit on behalf of Matthew T. Albence, Thomas M. Hodgson, Todd Lyons, Steven J. Souza, U.S. Immigration and Customs Enforcement (ICE), Chad F. Wolf (Kanwit, Thomas) (Entered: 03/28/2020)
20 Notice of Supplemental Authorities re 11 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A - Castillo v. Barr, # 2 Exhibit B - US v. Kennedy, # 3 Exhibit C - Haldeman Declaration, # 4 Exhibit D - Suarez Declaration)(Wishnie, Michael) (Entered: 03/29/2020)
21 Judge William G. Young: ELECTRONIC ORDER entered granting 15 Motion for Leave to Appear Pro Hac Vice; granting 18 Motion for Leave to Appear Pro Hac Vice. Added Reena Parikh and Ivan Espinoza-Madrigal. Attorneys admitted Pro Hac

03/29/2020 03/29/2020
03/29/2020 03/30/2020 03/30/2020
03/30/2020

Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 03/29/2020)
22 Judge William G. Young: ORDER entered. SERVICE ORDER re 2241 Petition. (PSSA, 5) (Entered: 03/29/2020)
23 Judge William G. Young: ELECTRONIC ORDER entered. As counsel for the respondent has appeared in this matter, counsel for the parties shall confer, and jointly report as to the status of this matter by 9:00 a.m., Monday, March 30, 2020. As part of the status report, counsel shall state whether this matter is resolved and if the scheduled hearing on the motion for temporary restraining order is necessary. If a hearing is necessary, the respondent shall file an opposition to the motion for temporary restraining order prior to the scheduled hearing. (PSSA, 5) (Entered: 03/29/2020)
24 STATUS REPORT JOINT STATUS REPORT by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves, Steven J. Souza. (Sellstrom, Oren) (Entered: 03/29/2020)
25 MOTION for Leave to File Excess Pages by Matthew T. Albence, Thomas M. Hodgson, Todd Lyons, Steven J. Souza, U.S. Immigration and Customs Enforcement (ICE), Chad F. Wolf.(Kanwit, Thomas) (Entered: 03/30/2020)
26 MEMORANDUM in Opposition re 11 MOTION for Temporary Restraining Order filed by Matthew T. Albence, Thomas M. Hodgson, Todd Lyons, Steven J. Souza, U.S. Immigration and Customs Enforcement (ICE), Chad F. Wolf. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Kanwit, Thomas) (Entered: 03/30/2020)
27 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 3/30/2020 via Zoom re 11 MOTION for Temporary Restraining Order filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. The Court hears arguments of counsel and continues the matter to Thursday, April 2, 2020 at 2 PM. The Court expects full disclosure and cooperation with any informal discovery. Affidavits of doctors to be filed; pictures/plans of facility shall be filed in camera for the Court's review. Motion Hearing continued to 4/2/2020 02:00 PM before Judge William G. Young. This hearing will be held via Zoom. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Nimni and

03/31/2020 03/31/2020 04/01/2020 04/01/2020
04/01/2020 04/02/2020
04/02/2020 04/02/2020 04/02/2020

Wishnie for the petitioners; Attorneys Kanwit and Sady for the respondent) (Gaudet, Jennifer) (Entered: 03/30/2020)
28 NOTICE of Appearance by William W. Fick on behalf of Rick Raemisch (Fick, William) (Entered: 03/31/2020)
29 MOTION for Leave to File Declaration as Amicus Curiae by Rick Raemisch. (Attachments: # 1 Proposed Amicus Declaration)(Fick, William) (Entered: 03/31/2020)
30 Opposition re 29 MOTION for Leave to File Declaration as Amicus Curiae filed by Steven J. Souza. (Kanwit, Thomas) (Entered: 04/01/2020)
31 Judge William G. Young: ELECTRONIC ORDER entered granting 29 Motion for Leave to File Declaration as Amicus Curiae by Rick Raemisch. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Gaudet, Jennifer) (Entered: 04/01/2020)
32 Letter from John A. Hawkinson Requesting Expedited Media Access. (Paine, Matthew) (Entered: 04/01/2020)
33 REPLY to Response to 11 MOTION for Temporary Restraining Order filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Appendix)(Nimni, Oren) (Entered: 04/02/2020)
34 DECLARATION of Amicus Curiae Corrections Expert by Rick Raemisch. (Fick, William) (Entered: 04/02/2020)
35 NOTICE by Steven J. Souza of Filing of Affidavits (Attachments: # 1 Exhibit Rencricca affidavit, # 2 Exhibit Jezard declaration, # 3 Exhibit CPS Clinical Guidelines)(Kanwit, Thomas) (Entered: 04/02/2020)
36 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 4/2/2020 re (11 in 1:20-cv-10617WGY) MOTION for Temporary Restraining Order filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. The Court explains to counsel what will be put on the docket and provisionally certifies five (5) sub-classes. After hearing arguments of counsel, the Court takes the matter under advisement and continues the matter to Friday, April 3, 2020 at 2:30 PM. The Court welcomes any agreements

04/02/2020
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of the parties. An order regarding Group One (1) to issue. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Nimni and Wishnie for the petitioners; Attorneys Kanwit and Sady for the respondent. Attorney McFadden for the petitioners and Ausa Farquhar for the respondent in 20-cv-10644.) Associated Cases: 1:20-cv-10617WGY, 1:20-cv-10644-WGY(Gaudet, Jennifer) (Entered: 04/02/2020)
37 Set/Reset Deadlines as to (11 in 1:20-cv-10617-WGY) MOTION for Temporary Restraining Order . Motion Hearing set for 4/3/2020 02:30 PM remotely by video/telephone before Judge William G. Young. Associated Cases: 1:20-cv-10617-WGY, 1:20-cv-10644-WGY(Gaudet, Jennifer) (Entered: 04/02/2020)
38 Judge William G. Young: ORDER entered re Group One (1)(Sonnenberg, Elizabeth) (Entered: 04/02/2020)
39 STIPULATION re Protective Order by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves, Steven J. Souza. (Attachments: # 1 Text of Proposed Order Protective Order)(Sellstrom, Oren) (Entered: 04/03/2020)
40 MOTION for Order to add Named Plaintiff Celimen Savino to subclass one by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Certificate of Conference Pursuant to L.R. 7.1(a)(2))(Wishnie, Michael) (Entered: 04/03/2020)
41 Supplemental MEMORANDUM in Opposition re 11 MOTION for Temporary Restraining Order filed by Steven J. Souza. (Attachments: # 1 Exhibit Case law)(Kanwit, Thomas) (Entered: 04/03/2020)
42 MOTION to Dismiss for Lack of Jurisdiction Named Plaintiff Celimen Savino Only and Opposition to Motion to Re-Categorize by Steven J. Souza.(Kanwit, Thomas) (Entered: 04/03/2020)
43 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 4/3/2020 remotely by video/telephone re (11 in 1:20-cv-10617-WGY) MOTION for Temporary Restraining Order filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. The matter as to the six detainees to be released by ICE is moot. The Court explains to counsel his release plans for Group One (1) and requests a list of 50 detainees by 4:00 PM on Saturday, April 4, 2020 the list shall be in order of consideration, thereafter a list of 10 per day starting on Tuesday, April 7, 2020. The proposed protective order is adopted by the Court. The Court requests to be notified of any new detainees. Order to enter outlining details of the motion hearing. (Court Reporter: Richard Romanow at

04/04/2020 04/04/2020 04/05/2020 04/06/2020 04/06/2020
04/06/2020
04/06/2020 04/06/2020 04/07/2020

bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom and Wishnie for the petitioners; Ausa Kanwit for the responsents. Attorney McFadden for the petitioners and Ausa Farquarhur for the respondents) Associated Cases: 1:20-cv-10617-WGY, 1:20-cv-10644WGY(Gaudet, Jennifer) (Entered: 04/04/2020)
44 Judge William G. Young: ORDER entered. (Gaudet, Jennifer) (Entered: 04/04/2020)
45 Judge William G. Young: ORDER entered. PROTECTIVE ORDER.(Gaudet, Jennifer) (Entered: 04/04/2020)
46 Judge William G. Young: ORDER entered. (Gaudet, Jennifer) (Entered: 04/05/2020)
47 Opposition re 42 MOTION to Dismiss for Lack of Jurisdiction Named Plaintiff Celimen Savino Only and Opposition to Motion to ReCategorize filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Wishnie, Michael) (Entered: 04/06/2020)
48 Transcript of TRO Hearing held on April 3, 2020, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 4/27/2020. Redacted Transcript Deadline set for 5/7/2020. Release of Transcript Restriction set for 7/6/2020. Associated Cases: 1:20-cv10617-WGY, 1:20-cv-10644-WGY(Scalfani, Deborah) (Entered: 04/06/2020)
49 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm Associated Cases: 1:20-cv-10617-WGY, 1:20-cv-10644WGY(Scalfani, Deborah) (Entered: 04/06/2020)
50 MEMORANDUM OF LAW by Thomas M. Hodgson in Opposition re 46 Order. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/06/2020)
51 MOTION for Reconsideration of Release of Detainee by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 04/06/2020)
52 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/7/2020: # 1 Exhibit 1 and 2,

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# 2 Exhibit 3 through 5, # 3 Exhibit 6 through 8, # 4 Exhibit 9 and 10) (Gaudet, Jennifer). (Entered: 04/07/2020)
53 Judge William G. Young: ELECTRONIC ORDER entered denying 42 Motion to Dismiss for Lack of Jurisdiction Named Plaintiff Celimen Savino Only. The motion is denied. Savino's present claims are markedly different from those presented in 20-cv-10259PBS. (Gaudet, Jennifer) (Entered: 04/07/2020)
54 Judge William G. Young: ELECTRONIC ORDER entered granting 51 Motion for Reconsideration of Release of Detainee. The Order releasing JERVIS VERNON is VACATED. Detainee HUGO CANDELARIO-ECHEGOYEN is admitted to bail on the same terms to be released forthwith. (Gaudet, Jennifer) (Entered: 04/07/2020)
55 Judge William G. Young: ELECTRONIC ORDER entered. In accordance with the Order entered on April 5, 2020, docket entry 46 the following detainees shall be submitted to bail and released forthwith: Montes-Santos, Pascual; Figueroa-Moralis, Julio; Smith, Donovan; James, Andrea; Thomas, Joko; Thomas, Akeim; Sanchez-Lopez, Victor; Paul, Schnaider. Notice has been made that Harlen, Perez has previously been released and therefore is dismissed from the class. The Court inquires whether given the number of cells and the common areas in the detention facility there is some number of detainees who might occupy the facility and yet be adequately spaced? Much like a nursing home or retirement facility. The views of physicians and public health professionals will be gratefully received. We shall discuss this matter at the hearing ordered for Thursday, April 9, 2020 at 2:00 PM. Said hearing shall be held remotely by video/telephone. ( Hearing set for 4/9/2020 02:00 PM remotely before Judge William G. Young by video/telephone.)(Gaudet, Jennifer) (Entered: 04/07/2020)
56 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/8/2020: # 1 Exhibit one and two, # 2 Exhibit 3 through 5, # 3 Exhibit 6 through 8, # 4 Exhibit 9 and 10) (Gaudet, Jennifer). (Entered: 04/07/2020)
57 Emergency MOTION for Discovery by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 04/08/2020)
58 BRIEF by Thomas M. Hodgson Regarding April 8 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/08/2020)

04/08/2020 04/08/2020 04/08/2020 04/08/2020 04/08/2020 04/08/2020 04/08/2020
04/09/2020 04/09/2020 04/09/2020 04/09/2020

59 MEMORANDUM OF LAW by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit)(Nimni, Oren) (Entered: 04/08/2020)
60 Judge William G. Young: ELECTRONIC ORDER entered granting in part and denying in part 57 Emergency Motion for Discovery. The motion is allowed as to paragraphs one through five and denied as to paragraph six. (Gaudet, Jennifer) (Entered: 04/08/2020)
61 MOTION for Extension of Time to 4/8/20 4 pm to Complete Discovery and Request for Response to Defendants' Discovery by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 04/08/2020)
62 NOTICE by Steven J. Souza of Intent to Remove (Kanwit, Thomas) (Entered: 04/08/2020)
63 MOTION for Reconsideration of Release by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 04/08/2020)
64 Judge William G. Young: MEMORANDUM AND ORDER re 13 MOTION to Certify Class filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Gaudet, Jennifer) (Entered: 04/08/2020)
65 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/9/2020: # 1 Exhibit one through three, # 2 Exhibit four and five, # 3 Exhibit six through eight, # 4 Exhibit nine and ten) (Gaudet, Jennifer). (Entered: 04/08/2020)
66 Opposition re 63 MOTION for Reconsideration of Release filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Additional attachment(s) added on 4/9/2020: # 1 Exhibit A) (Gaudet, Jennifer). (Entered: 04/09/2020)
67 MEMORANDUM in Opposition re 11 MOTION for Temporary Restraining Order re: April 9, 2020 List filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/09/2020)
68 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Expert Declarations. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Nimni, Oren) (Entered: 04/09/2020)
69 MEMORANDUM in Opposition re 11 MOTION for Temporary Restraining Order Declaration of Steven Souza filed by Thomas M. Hodgson. (Kanwit, Thomas) (Entered: 04/09/2020)

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04/09/2020 04/10/2020 04/10/2020

70 MOTION for Leave to File Law Student Appearances for Kokotailo, Pinkham, Rey, and Yan by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Certificate of Conference, # 2 Exhibit 1 - Kokotailo Declaration and Certification, # 3 Exhibit 2 Pinkham Declaration and Certification, # 4 Exhibit 3 - Rey Declaration and Certification, # 5 Exhibit 4 - Yan Declaration and Certification)(Wishnie, Michael) (Entered: 04/09/2020)
71 MOTION for Leave to File Law Student Appearances for Choi, Crowell, and Mehta by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Certificate of Conference, # 2 Exhibit 1 - Choi Declaration and Certification, # 3 Exhibit 2 Crowell Declaration and Certification, # 4 Exhibit 3- Mehta Declaration and Certification)(Wishnie, Michael) (Entered: 04/09/2020)
72 MEMORANDUM in Support re 71 MOTION for Leave to File Law Student Appearances for Choi, Crowell, and Mehta filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Wishnie, Michael) (Entered: 04/09/2020)
73 Judge William G. Young: ELECTRONIC ORDER entered. In accordance with the Court's terms and conditions of bail as set forth in paragraph 2 of its April 4, 2020 Order (ECF No. 44), and as modified at today's hearing to permit ICE in its discretion to include electronic monitoring as a condition of bail, the following detainees shall be submitted to bail and released forthwith: Nikiforidis, Georgios; Almanzar, Juan; Peguero-Vasquez, Victor; Kita Tshimanga, Antoni; Vargas, Cesar; Ferreira, Pamlar; Jaramillo-Quiroz, Hector; Al Amiri, Salim; Hussein, Hussien; Mota, Osvaldo; Ramirez-Maldanado, Ranferi;Rojas-Ceballos, Juan; Vasquez-Vasquez, Obed; Gutierrez-Deleon, Carlos; and Gabriel Castillo-Malpica. (Gaudet, Jennifer) (Entered: 04/09/2020)
74 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/10/2020: # 1 Exhibit one through three, # 2 five, six and eight, # 3 Exhibit nine through eleven) (Gaudet, Jennifer). (Entered: 04/09/2020)
75 BRIEF by Thomas M. Hodgson Defendants' Input for April 10 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/10/2020)
76 Judge William G. Young: ELECTRONIC ORDER entered. In Accordance with this Court's terms and conditions of bail as set forth in paragraph 2 of its April 4, 2020 Order (ECF No. 44), and as modified at the hearing held on April 9, 2020 to permit ICE in its discretion to include electronic monitoring as a condition of bail,

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the following detainees shall be submitted to bail and released forthwith: Corleto, Kevin; Arreaga, Marvin; Beltran-Araujo,Jose; Carangui,Carlos; Del Angel Moran, Gabino; Mahadeo, Kavon; Pesantez-Orellana, Edisson; Medeiros Neves Junio, Julio; Joseph, Desmond Lee; Jaramillo-Perez, Esteban. The following is not admitted to bail: Masimular, Thandokuhle. The matter of bail is taken under advisement as to: Bengu Blocker, Thembelihle; Bonilla Ochoa, Jhony; Sanchez Disla, Army; and Sis Duarte, Carlos. (Gaudet, Jennifer) Modified on 4/10/2020 to add Bengu Blocker, Thembelihle to the under advisement list (Gaudet, Jennifer). (Entered: 04/10/2020)
77 Judge William G. Young: ORDER entered. (Gaudet, Jennifer) (Entered: 04/10/2020)
78 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/13/2020: # 1 Exhibits one and two, # 2 Exhibits Four and Five, # 3 Exhibit Six and Eight, # 4 Exhibits Nine and Ten) (Gaudet, Jennifer). (Entered: 04/12/2020)
79 MEMORANDUM in Opposition re 11 MOTION for Temporary Restraining Order Regarding April 13 List filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/13/2020)
80 BRIEF by Thomas M. Hodgson Input re: April 14 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/13/2020)
81 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/14/2020: # 1 Exhibits one and two, # 2 Exhibits three through Five, # 3 Exhibits six through eight, # 4 Exhibits Nine and Ten) (Gaudet, Jennifer). (Entered: 04/14/2020)
82 MOTION to Stay Further Releases by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 04/14/2020)
83 MEMORANDUM in Support re 82 MOTION to Stay Further Releases filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Kanwit, Thomas) (Entered: 04/14/2020)
84 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/16/2020: # 1 Exhibits one and two, # 2 Exhibits three and four, # 3 Exhibits six through eight) (Gaudet, Jennifer). (Entered: 04/14/2020)

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85 BRIEF by Thomas M. Hodgson on April 15 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/15/2020)
86 Judge William G. Young: ELECTRONIC ORDER entered denying 82 Motion to Stay Further Releases by Thomas M. Hodgson. "We are in the midst of a pandemic unprecedented in our lifetime. Past experience is an uncertain guide to meeting the challenges of today. Thus, while the Court notes the revised ICE regulations concerning detainees, it is simply not presently in a position to issue any blanket stay which would, as a practical matter, go far to determining the merits of this case, ignoring the many other issues raised by the class. Instead, the Court will continue, on an individual basis, to work through the difficult issues of bail in the present crisis. That done, probably by the end of next week, we shall together schedule proceedings promptly to address the merits. Moreover, compelling issues of individual, institutional, and community health preclude the luxury of a stay so counsel can 'consider their appellate options.' The motion is denied. The release of Sandro Vera Campoverde on bond means he drops out of the class. Augustine Ohenhen is denied bail. Neved Bai Maney Lal is to be released forthwith on the same bail terms as heretofore. The remaining bail determinations already considered remain under advisement." (Gaudet, Jennifer) (Entered: 04/15/2020)
87 NOTICE by Steven J. Souza of Intent to Remove (Kanwit, Thomas) (Entered: 04/15/2020)
88 BRIEF by Thomas M. Hodgson . (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/15/2020)
89 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/16/2020: # 1 Exhibits one and two, # 2 Exhibits three through Five, # 3 Exhibits six through eight, # 4 Exhibits Nine and Ten) (Gaudet, Jennifer). (Entered: 04/16/2020)
90 Judge William G. Young: ELECTRONIC ORDER entered. In Accordance with this Court's terms and conditions of bail as set forth in paragraph 2 of its April 4, 2020 Order (ECF No. 44), and as modified at the hearing held on April 9, 2020 to permit ICE in its discretion to include electronic monitoring as a condition of bail, the following detainees shall be submitted to bail and released forthwith:Miranda-Castillo, Luis; Velasquez-Hernandez, Oscar. The release of Santos-Cabrera, Melchor on bond means he drops out of the class. Lima, Jucinei is denied bail. The matter of bail is

04/16/2020
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taken under advisement as to the April 16, 2020 list.(Gaudet, Jennifer) (Entered: 04/16/2020)
91 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brief re Current Status of BCHOC. (Attachments: # 1 Affidavit Wafula Decl, # 2 Affidavit Menjivar-Rojas Decl, # 3 Affidavit Concepcion Decl, # 4 Affidavit Supp Keller Decl, # 5 Affidavit Singer Decl, # 6 Affidavit Shin Decl, # 7 Affidavit Second Supp Gartland Decl)(Sellstrom, Oren) (Entered: 04/16/2020)
92 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/20/2020: # 1 Exhibits one and two, # 2 Exhibits three and four, # 3 Exhibit Six and Eight, # 4 Exhibit Nine) (Gaudet, Jennifer). (Entered: 04/17/2020)
93 MOTION Application for Bail by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Additional attachment(s) added on 4/17/2020: # 1 Exhibit) (Gaudet, Jennifer). (Entered: 04/17/2020)
94 BRIEF by Thomas M. Hodgson Input List April 17. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/17/2020)
95 Judge William G. Young: ELECTRONIC ORDER entered granting 93 Motion Application for Bail by Maria Alejandra Celimen Savino. Ms. Savino is on the list for next Wednesday, April 22, 2020 to be considered for bail. (Gaudet, Jennifer) (Entered: 04/17/2020)
96 Judge William G. Young: ELECTRONIC ORDER entered. The following detainees are denied bail: Ali, Liban and Tabia, Guillaum. The release of Jijon Mora, Felix and Lux-Quinilla, Carlos on bond means they drop out of the class. (Gaudet, Jennifer) (Entered: 04/17/2020)
97 Judge William G. Young: ORDER entered. (Gaudet, Jennifer) (Entered: 04/17/2020)
98 ELECTRONIC NOTICE of Hearing. Status Conference set for 4/24/2020 10:00 AM in Courtroom 18 before Judge William G. Young.
This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the sessions courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.

For questions regarding access to hearings, you may refer to the Court s general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

(Gaudet, Jennifer) (Entered: 04/17/2020)

04/18/2020

99 MOTION for Leave to Appear Pro Hac Vice for admission of Muneer Ahmad Filing fee: $ 100, receipt number 0101-8203276 by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Affidavit Affidavit of Muneer Ahmad)(Wishnie, Michael) (Entered: 04/18/2020)

04/19/2020

100 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/20/2020: # 1 Exhibits two and three, # 2 Exhibits four through six, # 3 Exhibits eight through eleven) (Gaudet, Jennifer). (Entered: 04/19/2020)

04/20/2020 101 MOTION for Extension of Time to 4/20/20 10:15 am to File Input List of 10 by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 04/20/2020)

04/20/2020 102 BRIEF by Thomas M. Hodgson Input on List of 10 4 20 2020. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/20/2020)

04/20/2020

103 Judge William G. Young: ELECTRONIC ORDER entered granting 101 Motion for Extension of Time to 4/20/20 10:15 am to File Input List of 10 by Thomas M. Hodgson. (Gaudet, Jennifer) (Entered: 04/20/2020)

04/20/2020

104 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/21/2020: # 1 Exhibits one and two, # 2 Exhibits three through five, # 3 Exhibits six through eight, # 4 Exhibits nine through eleven) (Gaudet, Jennifer). (Entered: 04/20/2020)

04/21/2020

105 BRIEF by Thomas M. Hodgson Input on April 21 2020 List. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Kanwit, Thomas) (Entered: 04/21/2020)

04/21/2020

106 Judge William G. Young: ELECTRONIC ORDER entered granting 99 Motion for Leave to Appear Pro Hac Vice. Added Muneer Ahmad. Attorneys admitted Pro Hac Vice must register for

electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 04/21/2020)

04/21/2020

107 Judge William G. Young: ELECTRONIC ORDER entered. In Accordance with this Court's terms and conditions of bail as set forth in paragraph 2 of its April 4, 2020 Order (ECF No. 44), and as modified at the hearing held on April 9, 2020 to permit ICE in its discretion to include electronic monitoring as a condition of bail, the following detainee shall be submitted to bail and released forthwith: Valentim, Lucas. The release of Smith, Cordel and Lopez Rodriguez, Geremias on bond means they drop out of the class. Da Graca, Aires and Williams, Keith are denied bail. The matter of bail is taken under advisement as to other detainees on the April 20, 2020 list.(Gaudet, Jennifer) (Entered: 04/21/2020)

04/21/2020 108 Judge William G. Young: ORDER entered. (Gaudet, Jennifer) (Entered: 04/21/2020)

04/21/2020 109 NOTICE by Steven J. Souza of Additional Detainees (Kanwit, Thomas) (Entered: 04/21/2020)

04/22/2020

110 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Additional attachment(s) added on 4/22/2020: # 1 Exhibits one and two, # 2 Exhibits four and five, # 3 Exhibits six through eight, # 4 Exhibits nine and ten) (Gaudet, Jennifer). (Entered: 04/22/2020)

04/22/2020 111 BRIEF by Thomas M. Hodgson April 22 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/22/2020)

04/22/2020

112 Judge William G. Young: ELECTRONIC ORDER entered. The following detainees are denied bail: Castillo-Martinez, Jairon; Daskalov, Dimitar; Lewis, Conroy; Martins, Edson; Prado Junior, Flavio.(Gaudet, Jennifer) (Entered: 04/22/2020)

04/22/2020 113 NOTICE by Steven J. Souza of Intent to Transfer (Kanwit, Thomas) (Entered: 04/22/2020)

04/23/2020

115 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Attachments: # 1 Exhibit Exhibit 11)(Sellstrom, Oren) (Additional attachment(s) added on 4/27/2020: # 2 Exhibits one and two, # 3 Exhibits three through five, # 4 Exhibits six through eight, # 5 Exhibits nine and ten) (Gaudet, Jennifer). (Entered: 04/23/2020)

04/23/2020 116 BRIEF by Thomas M. Hodgson Input on April 23 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/23/2020)

04/23/2020

117 Judge William G. Young: ELECTRONIC ORDER entered. The release of De Sousa Caldas, Jose on bond means he drops out of the class. Amado, Joao; Guillermo, Darlin Alberto; Kayitare, Fred; Menjivar Rojas, Carlos Dalelio and Okoli, Cyril are denied bail. The matter of bail is taken under advisement as to other detainees on the April 22, 2020 list.(Gaudet, Jennifer) (Entered: 04/23/2020)

04/23/2020

118 MOTION to Modify Release Terms by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 04/23/2020)

04/23/2020 119 DECLARATION (Supplemental) of Superintendent Souza by Thomas M. Hodgson. (Kanwit, Thomas) (Entered: 04/23/2020)

04/23/2020

132 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Status Conference held on 4/23/2020 by video. The Court addresses counsel regarding outstanding detainees. The government shall submit a list of detainees that have been removed and to which country they have been deported to. A hearing on the motion for preliminary injunction is set for Thursday, May 7, 2020 at 10:00 AM by video. The Court takes the matter of appointing a special master under advisement. A report as to the results of COVID-19 testing shall be supplied. Both Geraldo Cruz Soares and Mohamad Bassyouni will be considered for the list on Monday, April 27, 2020. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorney Sellstrom and Wishnie for the plaintiffs and Ausa Kanwit for the defendant) (Gaudet, Jennifer) (Entered: 04/27/2020)

04/24/2020

120 Notice of Supplemental Authorities re 11 MOTION for Temporary Restraining Order (Attachments: # 1 Roman Class Certification Order, # 2 Roman Preliminary Injunction, # 3 Roman FFCL)(Sellstrom, Oren) (Entered: 04/24/2020)

04/24/2020

121 NOTICE of Appearance by Lisa J. Pirozzolo on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Pirozzolo, Lisa) (Entered: 04/24/2020)

04/24/2020

122 NOTICE of Appearance by John J. Butts on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Butts, John) (Entered: 04/24/2020)

04/24/2020

123 NOTICE of Appearance by Felicia H. Ellsworth on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Ellsworth, Felicia) (Entered: 04/24/2020)

04/24/2020

124 NOTICE of Appearance by Vinita Ferrera on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Ferrera, Vinita) (Entered: 04/24/2020)

04/24/2020

125 NOTICE of Appearance by Michael J. Brown on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Brown, Michael) (Entered: 04/24/2020)

04/24/2020

126 NOTICE of Appearance by Annaleigh E. Curtis on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Curtis, Annaleigh) (Entered: 04/24/2020)

04/24/2020 127 NOTICE of Appearance by Rama S. Attreya on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Attreya, Rama) (Entered: 04/24/2020)

04/24/2020

128 NOTICE of Appearance by Gary B. Howell-Walton on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (HowellWalton, Gary) (Entered: 04/24/2020)

04/24/2020

129 NOTICE of Appearance by Nicole M.F. Dooley on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Dooley, Nicole) (Entered: 04/24/2020)

04/27/2020

130 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Brf on Individual Applications for Bail. (Sellstrom, Oren) (Entered: 04/27/2020)

04/27/2020 131 BRIEF by Thomas M. Hodgson Regarding April 27 List. (Attachments: # 1 Exhibit 1)(Kanwit, Thomas) (Entered: 04/27/2020)

04/27/2020

133 Set/Reset Deadlines as to motion for preliminary injunction. Motion Hearing set for 5/7/2020 10:00 AM by video 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 04/27/2020)

04/27/2020

134 Judge William G. Young: ELECTRONIC ORDER entered. Tep, Samnang is denied bail; all other detainees on the list for April 23, 2020 remain pending and under advisement. (Gaudet, Jennifer) (Entered: 04/27/2020)

04/28/2020

135 Judge William G. Young: ELECTRONIC ORDER entered. In Accordance with this Court's terms and conditions of bail as set forth in paragraph 2 of its April 4, 2020 Order (ECF No. 44), and as modified at the hearing held on April 9, 2020 to permit ICE in its discretion to include electronic monitoring as a condition of bail, the following detainee shall be submitted to bail and released forthwith: Cruz Soares, Geraldo. The following detainees are

denied bail: Delapaz, Gabri, Lopez-Gonzalez, Emmanuel and Bassyouni, Mohamad. The matter of bail is taken under advisement as to Amador Galindo, Diego and Blanco, Bacilio.(Gaudet, Jennifer) (Entered: 04/28/2020)

04/29/2020

136 NOTICE of Appearance by Muneer I. Ahmad on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Ahmad, Muneer) (Entered: 04/29/2020)

04/29/2020

137 Joint MOTION for Discovery by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Text of Proposed Order Proposed Discovery Order Re Class Member Medical Records)(Sellstrom, Oren) (Entered: 04/29/2020)

04/30/2020

138 Judge William G. Young: ELECTRONIC ORDER entered granting 137 Joint Motion for Discovery. (Gaudet, Jennifer) (Entered: 04/30/2020)

04/30/2020

139 Judge William G. Young: STIPULATED DISCOVERY ORDER Regarding Production of Class Member Medical Records entered. (Gaudet, Jennifer) (Entered: 04/30/2020)

05/04/2020

141 Emergency MOTION for Discovery by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 05/04/2020)

05/04/2020 142 MOTION for Protective Order on Hodgson Deposition by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 05/04/2020)

05/04/2020

144 Judge William G. Young: ELECTRONIC ORDER entered re 141 Emergency MOTION for Discovery filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves, 142 MOTION for Protective Order on Hodgson Deposition filed by Thomas M. Hodgson, Motions terminated: 142 MOTION for Protective Order on Hodgson Deposition filed by Thomas M. Hodgson, 141 Emergency MOTION for Discovery filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. The Sheriff may be deposed for a maximum of three hours. The present conditions under which any of the detainees are being held is properly discoverable. The circumstances of Fridays disruption is not. Be it remembered that this is a habeas class action, not institutional reform litigation. The Court will propound at least the following two questions at Thursdays hearing: To plaintiffs counsel: Since it appears uncontroverted that certain detainees refused to be tested, isnt the Court entitled to assume they feared a positive test with the consequence of quarantine and collateral restrictions? To defense counsel: How many detainees remain in custody at the site

(whether original class members or add ons) Exactly where are they and under what conditions are they being held? The numbers in each particular location within (or outside) the site. What opportunity, if any, do they have to intermingle and with whom? (Gaudet, Jennifer) (Entered: 05/04/2020)

05/05/2020

145 SEALED SUPPLEMENT To Briefings on Individual Applications for Bail by Maria Alejandra Celimen Savino. (Attachments: # 1 Exhibit Five)(Gaudet, Jennifer) (Entered: 05/05/2020)

05/05/2020 146 NOTICE by Steven J. Souza of Transfer In (Kanwit, Thomas) (Entered: 05/05/2020)

05/05/2020

147 Judge William G. Young: ELECTRONIC ORDER entered. In Accordance with this Court's terms and conditions of bail as set forth in paragraph 2 of its April 4, 2020 Order (ECF No. 44), and as modified at the hearing held on April 9, 2020 to permit ICE in its discretion to include electronic monitoring as a condition of bail, the following detainees shall be submitted to bail and released forthwith: De Jesus Concepcion, Angela and Rojas Vargas, Karina.(Gaudet, Jennifer) (Entered: 05/05/2020)

05/06/2020

148 Transcript of Continued Video (Zoom) TRO Hearing held on April 9, 2020, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 5/27/2020. Redacted Transcript Deadline set for 6/8/2020. Release of Transcript Restriction set for 8/4/2020. Associated Cases: 1:20-cv-10617-WGY, 1:20-cv-10644-WGY(Scalfani, Deborah) (Entered: 05/06/2020)

05/06/2020

149 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 05/06/2020)

05/06/2020

150 Supplemental MEMORANDUM in Support re 11 MOTION for Temporary Restraining Order filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

151 DECLARATION re 150 Memorandum in Support of Motion (Sellstrom Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

152 DECLARATION re 150 Memorandum in Support of Motion (De Jesus Concepcion Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

153 DECLARATION re 150 Memorandum in Support of Motion (Dias Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

154 DECLARATION re 150 Memorandum in Support of Motion (Doe Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

155 DECLARATION re 150 Memorandum in Support of Motion (Fall Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

156 DECLARATION re 150 Memorandum in Support of Motion (Reyes Batista Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

157 DECLARATION re 150 Memorandum in Support of Motion (Wafula Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

158 DECLARATION re 150 Memorandum in Support of Motion (Bonilla Ochoa Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

159 DECLARATION re 150 Memorandum in Support of Motion (Castillo Martinez Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

160 DECLARATION re 150 Memorandum in Support of Motion (Graca Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

161 DECLARATION re 150 Memorandum in Support of Motion (Baez Guerrero Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

162 DECLARATION re 150 Memorandum in Support of Motion (Lewis Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

163 DECLARATION re 150 Memorandum in Support of Motion (Alberto Mateo Mateo Declaration) by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Pirozzolo, Lisa) (Entered: 05/06/2020)

05/06/2020

164 Opposition re 11 MOTION for Temporary Restraining Order / Preliminary Injunction filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit 1 Souza decl., # 2 Exhibit 2 CDC Guidance, # 3 Exhibit 3 3 11th Cir. Swain decision, # 4 Exhibit 4 Barco decision, # 5 Exhibit 5 Jenkins decision, # 6 Exhibit 6 ICE A dimensions, # 7 Exhibit 7 Mods dimensions)(Kanwit, Thomas) (Entered: 05/06/2020)

05/06/2020 165 NOTICE by Steven J. Souza of Transfer Out of Bristol (Kanwit, Thomas) (Entered: 05/06/2020)

05/06/2020 166 MOTION to Compel Discovery Responses by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 05/06/2020)

05/07/2020 167 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 05/07/2020)

05/07/2020

168 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing re motion for preliminary injunction held on 5/7/2020 by video. The Court hears arguments of counsel and enters an order concluding that on the record before the Court a preliminary injunction is fully warranted and requires that as soon as reasonably possible all detainees and staff be tested, with FDA approved test, for COVID-19 at no cost to them. No new detainees to be admitted to this detention facility. See transcript for details. Said order takes effect forthwith. Written order to issue, with the Court reserving his right to enter additional preliminary injunction orders. The parties may at anytime seek modifications. The Court recites analysis and findings for preliminary injunction order. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom, Wishnie, Pirozzolo and Butts for the plaintiffs and Ausa Kanwit for the defendant) (Gaudet, Jennifer) (Entered: 05/08/2020)

05/09/2020

169 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Request re Imminent Transfers. (Sellstrom, Oren) (Additional attachment(s) added on 5/11/2020: # 1 Exhibit) (Gaudet, Jennifer). (Entered: 05/09/2020)

05/11/2020 170 Opposition re 166 MOTION to Compel Discovery Responses filed by Thomas M. Hodgson. (Kanwit, Thomas) (Entered: 05/11/2020)

05/11/2020

171 ELECTRONIC NOTICE of Hearing. Hearing re 169 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Request re Imminent Transfers set for 5/11/2020 11:30 AM by video before Judge William G. Young.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in

CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.public.mad.uscourts.gov/seat ing-signup.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

(Gaudet, Jennifer) (Entered: 05/11/2020)

05/11/2020

172 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Hearing held on 5/11/2020 by video. The Court addresses counsel re 169 request re imminent transfers. The Court modifies the preliminary injunction as follows to the extent ICE seeks to remove an individual detainee: No individual shall be moved until the testing for Covid-19 has been performed and the Court informed of the results. If an individual declines to be tested then the individual may be moved so long as it is compliant with ICE internal protocols. The government moves to stay entry of modification - the Court denies the request. Further briefing regarding outstanding issues raised by the plaintiff is welcomed. The Court will further reflect on the pending motion for discovery. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom, Wishnie and Butts for the plaintiff and Attorney Kanwit for the defendant) (Gaudet, Jennifer) (Entered: 05/11/2020)

05/11/2020 173 MOTION Expedited Response to Motion to Compel by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 05/11/2020)

05/11/2020

174 STATEMENT OF COUNSEL re 173 MOTION Expedited Response to Motion to Compel by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 05/11/2020)

05/12/2020 175 Judge William G. Young: ORDER entered. MEMORANDUM OF DECISION(Sonnenberg, Elizabeth) (Entered: 05/12/2020)

05/12/2020

176 Judge William G. Young: ELECTRONIC ORDER entered re 173 MOTION Expedited Response to Motion to Compel filed by Thomas M. Hodgson. The Court requires a copy of the interrogatories sought to be enforced. (Gaudet, Jennifer) (Entered: 05/12/2020)

05/13/2020

177 BRIEF by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves Further Briefing re Imminent Transfers. (Sellstrom, Oren) (Entered: 05/13/2020)

05/15/2020

178 MEMORANDUM in Opposition re 166 MOTION to Compel Discovery Responses filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Appendix A, # 2 Appendix B)(Butts, John) (Entered: 05/15/2020)

05/17/2020

179 REPLY to Response to 11 MOTION for Temporary Restraining Order (Further Brief on Transfers Out) filed by Thomas M. Hodgson. (Kanwit, Thomas) (Entered: 05/17/2020)

05/18/2020

180 Judge William G. Young: ELECTRONIC ORDER entered granting in part and denying in part 166 Motion to Compel. The motion to compel answers to interrogatories is ALLOWED as to interrogatories 6 and 9. The Court accepts plaintiffs counsels response that they have no such additional information as to interrogatory no. 6 after appropriate inquiry. Counsels objection to interrogatory no. 9 is overruled and a complete answer shall be furnished within 30 days of the date of this order. The motion is otherwise DENIED as immaterial. On or before Thursday, May 28, 2020 the defendants shall make a comprehensive and detailed report to the Court setting forth, with specific dates, the plan for testing staff and detainees at the Bristol facility as required by this Courts preliminary injunction. Comprehensive testing is key here. The Court is informed that the Massachusetts Department of Corrections has assured the Massachusetts Supreme Judicial Court that it is proceeding to test all DOC staff and is offering to test every inmate. Since, under our Constitution, ICE power to lock a person up is limited by its obligation to care for that person, surely ICE can be expected to care for its civil detainees at least as well as Massachusetts cares for its convicted felons. Since, under the orders presently. In place, no detainee is to leave the facility until such testing of staff and detainees has taken place, the defendants are under no additional duties to report beyond those presently ordered by this Court or other Judges thereof. (Gaudet, Jennifer) (Entered: 05/18/2020)

05/20/2020 181 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 05/20/2020)

05/21/2020

182 Judge William G. Young: ELECTRONIC ORDER entered re 181 Notice of Intent to Transfer Out filed by Steven J. Souza. No one is to be moved until the testing ordered by the Court has been accomplished. (Gaudet, Jennifer) (Entered: 05/21/2020)

05/21/2020

183 ELECTRONIC NOTICE of Hearing. Hearing re 181 NOTICE by Steven J. Souza of Intent to Transfer Out set for 5/22/2020 09:00 AM by video before Judge William G. Young.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.forms.mad.uscourts.gov/courtlist.html.

For questions rega rding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

(Gaudet, Jennifer) (Entered: 05/21/2020)

05/22/2020 184 MOTION for Leave to File Excess Pages by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 05/22/2020)

05/22/2020

185 MOTION for Reconsideration of Preliminary Injunction Decision by Thomas M. Hodgson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Kanwit, Thomas) (Entered: 05/22/2020)

05/22/2020

187 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Hearing held by video on 5/22/2020. The Court addresses counsel regarding COVID testing in according with the preliminary injunction. Counsel for the defendant is instructed to notify the clerk regarding the tests provided. Counsel shall submit a joint proposed case management schedule within two weeks. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom, Wishnie and Parikh for the plaintiffs and Attorney Kanwit for the defendant) (Gaudet, Jennifer) (Entered: 05/28/2020)

05/26/2020

186 Judge William G. Young: ELECTRONIC ORDER entered re 185 MOTION for Reconsideration of Preliminary Injunction Decision filed by Thomas M. Hodgson. The Court treats the Motion for Reconsideration (doc. 185) as a motion to modify the preliminary injunction. The petitioners are directed to respond within 7 day of the date hereof, addressing three issues: 1) the problem of transfer between institutions caused by this Courts bar on adding additional detainees in Bristol; 2) the operational problems caused by the requirement that all staff be tested; and 3)

the allegations that certain detainees released on bail are violating their bail conditions. The Court will then schedule a prompt hearing. (Gaudet, Jennifer) (Entered: 05/26/2020)

05/28/2020

188 Transcript of Video Conference Preliminary Injunction (Status Conference) held on April 24, 2020, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 6/18/2020. Redacted Transcript Deadline set for 6/29/2020. Release of Transcript Restriction set for 8/26/2020. (Scalfani, Deborah) (Entered: 05/28/2020)

05/28/2020

189 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 05/28/2020)

05/28/2020 190 NOTICE by Steven J. Souza of Testing to Date (Attachments: # 1 Exhibit A)(Kanwit, Thomas) (Entered: 05/28/2020)

05/29/2020 191 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 05/29/2020)

05/29/2020

192 NOTICE by Steven J. Souza re 190 Notice (Other) CORRECTED Notice of Testing to Date (Attachments: # 1 Exhibit A)(Kanwit, Thomas) (Entered: 05/29/2020)

06/01/2020

193 NOTICE OF APPEAL re 36 Electronic Clerks Notes/Order, 38 Order, 44 Order. 54 Electronic Order, 55 Electronic Order, 64 Memorandum and Order, 73 Electronic Order, 76 Electronic Order, 86 Electronic Order, 90 Electronic Order, 107 Electronic Order, 135 Electronic Order, 147 Electronic Order by Thomas M. Hodgson, Todd Lyons, Julio Cesar Medeiros Neves, Rick Raemisch, Steven J. Souza, U.S. Immigration and Customs Enforcement (ICE) Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 6/22/2020. (Kanwit,

Thomas) (Modified on 6/2/2020 to Correct Appeal Docket Text and Add Document Links to Orders Being Appealed.) (Paine, Matthew). (Entered: 06/01/2020)

06/02/2020

194 ELECTRONIC NOTICE Setting Hearing on Motion 185 MOTION for Reconsideration of Preliminary Injunction Decision (treated as a motion to modify the preliminary injunction): Motion Hearing set for 6/3/2020 11:30 AM by video before Judge William G. Young.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.forms.mad.uscourts.gov/courtlist.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www .mad.uscourts.gov or contact media@mad.uscourts.gov.

(Gaudet, Jennifer) (Entered: 06/02/2020)

06/02/2020

195 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 193 Notice of Appeal. (Paine, Matthew) (Entered: 06/02/2020)

06/02/2020

196 Opposition re 185 MOTION for Reconsideration of Preliminary Injunction Decision filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Affidavit Sellstrom Declaration)(Sellstrom, Oren) (Entered: 06/02/2020)

06/02/2020

197 NOTICE of Appearance by Mikayla C. Foster on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Foster, Mikayla) (Entered: 06/02/2020)

06/02/2020

198 NOTICE of Appearance by Elizabeth E. Driscoll on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (Driscoll, Elizabeth) (Entered: 06/02/2020)

06/03/2020

199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail by Thomas M. Hodgson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kanwit, Thomas) (Entered: 06/03/2020)

06/03/2020

200 NOTICE by Steven J. Souza Objection to Recharacterization of Motion for Reconsideration of Preliminary Injunction Order (Kanwit, Thomas) (Entered: 06/03/2020)

06/03/2020 201 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 06/03/2020)

06/03/2020

206 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 6/3/2020 by video re 185 MOTION for Reconsideration of Preliminary Injunction Decision filed by Thomas M. Hodgson. The Court Orders: The Court invites, but does not require, both parties to inform the Court what acceptable population range can be safely held in the facility. Recognizing that the question of safety is an evolving issue, no partys selection of a number shall be taken as an admission that can be held against its initial position. Such a filing, if undertaken, shall be submitted by next Wednesday, 6/13/20; The Court orders respondent to submit a report by next Wednesday, 6/13/20, of those immigration detainees held at Bristol County House of Correction who are at heightened risk to COVID-19 and are thus eligible for review for release by ICE under ICEs Pandemic Response Requirements and the April 4 memorandum from Assistant Director Peter Berg which it cites. By the same date, both parties are invited to submit briefing regarding medically vulnerable detainees to be considered for bail by the Court. The preliminary injunction is modified to make the testing of staff at the facility voluntary. All staff shall be afforded an opportunity to be tested. Accepting or declining the test shall have no effect on a staff members job. Any symptomatic staff member shall be promptly tested. ICE shall bear the cost of this testing. Petitioners shall respond to the pending motion to revoke bail by Friday, June 5, 2020. A hearing will be set for Monday, June 8, 2020. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom and Ahmad for the plaintiffs and Ausa Kanwit for the government) (Gaudet, Jennifer) (Entered: 06/08/2020)

06/05/2020

202 Opposition re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 06/05/2020)

06/08/2020

203 USCA Case Number 20-1564 for 193 Notice of Appeal filed by Julio Cesar Medeiros Neves, Steven J. Souza, Thomas M. Hodgson, U.S. Immigration and Customs Enforcement (ICE), Rick Raemisch, Todd Lyons. (Paine, Matthew) (Entered: 06/08/2020)

06/08/2020 204 MOTION for Leave to File Reply Brief on Bond Revocation by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 06/08/2020)

06/08/2020

205 Opposition re 204 MOTION for Leave to File Reply Brief on Bond Revocation filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 06/08/2020)

06/08/2020

207 Judge William G. Young: ELECTRONIC ORDER entered. Insofar as the respondents motion seeks a modification of the terms and conditions of the bail orders of this Court, it is denied. The motion to revoke the bail of Kokou Aziabo is denied without predjudice to the actions of ICE officials since he is not subject to the orders of this Court. The motion of the respondents to reply to the averments that ICE officials unilaterally undertook to modify the conditions of bail is allowed.(Gaudet, Jennifer) (Entered: 06/08/2020)

06/08/2020

208 ELECTRONIC NOTICE Setting Hearing on Motion 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail : Motion Hearing set for 6/12/2020 02:30 PM by video before Judge William G. Young.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.public.mad.uscourts .gov/seating-signup.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

(Gaudet, Jennifer) (Entered: 06/08/2020)

06/08/2020

209 Judge William G. Young: ELECTRONIC ORDER entered granting 204 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Gaudet, Jennifer) (Entered: 06/08/2020)

06/10/2020

210 MOTION Relief from 48 Hour Notice Prior to Removal by U.S. Immigration and Customs Enforcement (ICE).(Kanwit, Thomas) (Entered: 06/10/2020)

06/10/2020

211 Judge William G. Young: ELECTRONIC ORDER entered granting 210 Motion "While this is an irregular way to proceed (as counsel properly recognizes), upon the express representation that Patricio Salazar-Martinez desires this prompt deportation, the motion is allowed."(PSSA, 5) (Entered: 06/10/2020)

06/10/2020

222 Plaintiffs' Briefing Regarding Medically Vulnerable Class Members and Acceptable Population Range at Bristol County House of Correction (filed under seal). (Attachments: # 1 Exhibits A-C, # 2 Exhibits D-F, # 3 Exhibits G-J, # 4 Exhibits A-O, # 5 Exhibit P)(Gaudet, Jennifer) (Additional attachment(s) added on 6/15/2020: # 6 Declaration of Oren Sellstrom) (Gaudet, Jennifer). (Entered: 06/15/2020)

06/11/2020 212 Defendant's Report Regarding Medical Conditions (filed under seal). (Gaudet, Jennifer) (Entered: 06/11/2020)

06/11/2020

213 ELECTRONIC NOTICE Resetting Hearing on Motion 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail : Motion Hearing set for 6/15/2020 12:00 PM by video before Judge William G. Young.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.public.mad.uscour ts.gov/seating-signup.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

(Gaudet, Jennifer) (Entered: 06/11/2020)

06/11/2020 214 MEMORANDUM OF LAW by Thomas M. Hodgson. (Attachments: # 1 Exhibit A)(Kanwit, Thomas) (Entered: 06/11/2020)

06/11/2020

215 MOTION for Extension of Time to 6/11/20 to File Brief on Target Population Level by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 06/11/2020)

06/11/2020

216 Judge William G. Young: ELECTRONIC ORDER entered granting 215 Motion for Extension of Time to 6/11/20 to File Brief on Target Population Level by Thomas M. Hodgson. (Gaudet, Jennifer) (Entered: 06/11/2020)

06/12/2020 217 JOINT STATEMENT re scheduling conference . (Sellstrom, Oren) (Entered: 06/12/2020)

06/12/2020

218 Supplemental MEMORANDUM in Support re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit A)(Kanwit, Thomas) (Entered: 06/12/2020)

06/15/2020

219 MOTION for Leave to File Sur-Reply by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 06/15/2020)

06/15/2020

220 Judge William G. Young: ELECTRONIC ORDER entered granting 219 Motion for Leave to File Sur-Reply by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Gaudet, Jennifer) (Entered: 06/15/2020)

06/15/2020

221 SUR-REPLY to Motion re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 06/15/2020)

06/15/2020

223 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 6/15/2020 by video re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Thomas M. Hodgson. After hearing arguments of counsel, the Court announces bail is revoked as to Jose Alejandro Beltran-Araujo and Marvin Arreaga. The Court orders release paperwork and affidavits on remaining detainees the defendant is seeking to revoke bail on. A medical status update as to the following three detainees is welcomes by the Court: Reyes-Batista, Amaury; Monteiro, Alessandro and Woodly Dodieu. Further briefing regarding the current population to be filed by June 25, 2020. The government shall report to the Court when unit B will be available. A further hearing is set for Thursday, June 25, 2020 at 12:00 PM. Memorandum to issue. (Further Motion Hearing set for 6/25/2020 12:00 PM by video before Judge William G. Young.). (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom

and Wishnie for the plaintiffs and Ausa Kanwit for the defendant) (Gaudet, Jennifer) Modified on 6/18/2020 to change the detainee which requires further medical briefing (Gaudet, Jennifer). (Entered: 06/17/2020)

06/17/2020 224 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 06/17/2020)

06/18/2020 225 Judge William G. Young: MEMORANDUM entered. (Gaudet, Jennifer) (Entered: 06/18/2020)

06/22/2020

226 Assented to MOTION to Modify Protective Order by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Text of Proposed Order Proposed Stipulated Protective Order)(Sellstrom, Oren) (Entered: 06/22/2020)

06/22/2020

227 Transcript of Preliminary Injunction (continued) held on June 15, 2020, before Judge William G. Young. COA Case No. 20-1564. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 7/13/2020. Redacted Transcript Deadline set for 7/23/2020. Release of Transcript Restriction set for 9/21/2020. (Scalfani, Deborah) (Entered: 06/22/2020)

06/22/2020

228 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 06/22/2020)

06/22/2020

229 NOTICE OF CROSS APPEAL 107 Electronic Order, 112 Electronic Order, 117 Electronic Order, 134 Electronic Order, 135 Electronic Order by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. ( Filing fee: $ 505, receipt number 0101-8296355 (Fee Status: Filing Fee paid)) NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 7/13/2020. (Ellsworth, Felicia) (Modified on 6/23/2020 to Correct Docket Text

As Counsel Filed the Appeal Incorrectly and Failed to Follow the Prompts on CM/ECF and Link the Orders Being Appealed to the Notice of Appeal.) (Paine, Matthew). (Entered: 06/22/2020)

06/23/2020

230 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 229 Notice of Cross Appeal. (Paine, Matthew) (Entered: 06/23/2020)

06/23/2020

231 Judge William G. Young: ELECTRONIC ORDER entered approving 217 JOINT STATEMENT re scheduling conference. (Gaudet, Jennifer) (Entered: 06/23/2020)

06/23/2020 232 Set/Reset Hearings: Ready for Trial on 3/1/2021 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 06/23/2020)

06/23/2020

233 USCA Case Number 20-1626 for 229 Notice of Cross Appeal filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Paine, Matthew) (Entered: 06/23/2020)

06/24/2020 234 NOTICE by Steven J. Souza of Intent to Transfer out of Bristol (Sady, Michael) (Entered: 06/24/2020)

06/24/2020

235 BRIEF by Thomas M. Hodgson re: Medical Conditions. (Attachments: # 1 Exhibit 1 Murphy Decl., # 2 Exhibit 3 EAD ICE Memo, # 3 Exhibit 4 ICE Memo, # 4 Exhibit 5 CPS Med Guidelines)(Kanwit, Thomas) (Entered: 06/24/2020)

06/24/2020

236 Supplemental MEMORANDUM in Support re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit 1 Guarna Armstrong decl., # 2 Exhibit 2 Marfissi decl., # 3 Exhibit 3 Greenbaum decl., # 4 Exhibit 4 Hyde decl., # 5 Exhibit 5 Amirault decl., # 6 Exhibit 6 Wesling decl., # 7 Exhibit 7 Nelligan decl., # 8 Exhibit 8 Petterson decl., # 9 Exhibit 9 Moran decl., # 10 Exhibit 10 Perez decl., # 11 Exhibit 11 Oviedo decl., # 12 Exhibit 12 Solis decl., # 13 Exhibit 13 Kanwit decl. w/ attachments)(Kanwit, Thomas) (Entered: 06/24/2020)

06/24/2020

237 MOTION to Compel Compliance with Subpoena by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Wishnie, Michael) (Entered: 06/24/2020)

06/24/2020

238 MEMORANDUM in Support re 237 MOTION to Compel Compliance with Subpoena filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit A, # 2 Exhibit B,

# 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Wishnie, Michael) (Entered: 06/24/2020)

06/25/2020

239 MOTION to Continue the portion of the June 25th hearing regarding bail revocation. by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Wishnie, Michael) (Entered: 06/25/2020)

06/25/2020

240 Plaintiffs' Further Briefing Regarding Medical and Capacity Issues (filed under seal). (Attachments: # 1 Declaration of Oren Sellstrom)(Gaudet, Jennifer) (Entered: 06/25/2020)

06/25/2020

241 DECLARATION re 221 Sur-Reply to Motion by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Supplemental Declaration of Desmon, # 2 Supplemental Declaration of Kavon Mahadeo, # 3 Supplemental Declaration of Kavon Mahadeo, # 4 Declaration of Pamlar Fereira, # 5 Supplemental Declaration of Ranferi Ramirez Maldonado, # 6 Declaration of Gabino Del Moran)(Wishnie, Michael) (Entered: 06/25/2020)

06/25/2020

242 Electronic Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 6/25/2020 by video re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Thomas M. Hodgson. The Court revokes bail as to Del Angel Moran and Cesar Vargas; denies request to revoke bail as to Pamlar Ferreira. The motion 237 for discovery (GPS) is allowed as to the following three (3) detainees: Carlos Gutierrez-Deleon; Desmond Joseph and Ranferi Ramirez-Maldanado and taken under advisement as to other detainees. The Court sets the following schedule: the government shall disclose within five days and the plaintiffs shall respond within five days from receipt. The motion to revoke bail remains under advisement as to certain detainees. The Court entertains arguments as to a possible revision to the preliminary injunction. The Assented to MOTION to Modify Protective Order 226 is allowed. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: Attorneys Sellstrom for the plaintiffs and Ausa Sady for the defendant) (Gaudet, Jennifer) Modified on 7/1/2020 (Gaudet, Jennifer). (Entered: 07/01/2020)

06/25/2020 243 Judge William G. Young: STIPULATED MODIFIED PROTECTIVE ORDER entered. (Gaudet, Jennifer) (Entered: 07/01/2020)

06/29/2020 248 Letter from Omar Omar to Judge William G. Young. (Paine, Matthew) (Entered: 07/08/2020)

06/30/2020 244 Judge William G. Young: ORDER entered. (Gaudet, Jennifer) (Entered: 07/01/2020)

07/02/2020 245 ANSWER to 1 Complaint,, by Thomas M. Hodgson.(Kanwit, Thomas) (Entered: 07/02/2020)
07/06/2020 246 MEMORANDUM OF LAW by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 07/06/2020)

07/07/2020

247 UNOPPOSED MOTION to Modify Preliminary Injunction by Thomas M. Hodgson.(Kanwit, Thomas) Modified on 7/8/2020 (Gaudet, Jennifer). (Entered: 07/07/2020)

07/08/2020

249 Judge William G. Young: ELECTRONIC ORDER entered granting 247 Unopposed Motion to Modify Preliminary Injunction. (Gaudet, Jennifer) (Entered: 07/08/2020)

07/08/2020

250 Judge William G. Young: ELECTRONIC ORDER entered re 248 Letter/request from Omar Omar to Judge Young. This letter is treated as a motion which is denied, there being no case before this Court.(Gaudet, Jennifer) (Entered: 07/08/2020)

07/13/2020

251 MOTION for Leave to Appear Pro Hac Vice by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Affidavit of Sara Zampierin)(Wishnie, Michael) (Modified on 7/13/2020 to Correct Docket Text and CM/ECF Filing Event As Counsel Filed The Motion Under the Wrong Event in CM/ECF) (Paine, Matthew).

Modified on 10/7/2020 to Add Receipt/Payment Information Receipt#0101-8452713 - Fee Paid

(Paine, Matthew). (Entered: 07/13/2020)

07/13/2020

252 MOTION to Withdraw as Attorney by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Parikh, Reena) (Entered: 07/13/2020)

07/13/2020

253 MEMORANDUM in Support re 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit A)(Kanwit, Thomas) (Entered: 07/13/2020)

07/14/2020

254 Judge William G. Young: ELECTRONIC ORDER entered granting 252 Motion to Withdraw as Attorney. Attorney Reena Parikh terminated. (Gaudet, Jennifer) (Entered: 07/14/2020)

07/16/2020 255 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 07/16/2020)

07/16/2020 256 NOTICE by Steven J. Souza of Intent to Transfer Out (Mcmenamin) (Kanwit, Thomas) (Entered: 07/16/2020)

07/16/2020 257 NOTICE by Steven J. Souza of Transfer Out (Kanwit, Thomas) (Entered: 07/16/2020)

07/22/2020

258 Supplemental REPLY to Response to 199 MOTION to Modify Terms and Conditions of Release and to Revoke Bail filed by Thomas M. Hodgson. (Attachments: # 1 Exhibit Declaration Exhibit A)(Kanwit, Thomas) (Entered: 07/22/2020)

07/22/2020 259 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 07/22/2020)

07/30/2020 260 NOTICE by Steven J. Souza of Transfer out of Bristol (Sady, Michael) (Entered: 07/30/2020)

07/31/2020

261 Transcript of Preliminary Injunction (continued) held on June 3, 2020, before First. COA Case No. 20-1564 and 20-1626. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 8/21/2020. Redacted Transcript Deadline set for 8/31/2020. Release of Transcript Restriction set for 10/29/2020. (Scalfani, Deborah) (Entered: 07/31/2020)

07/31/2020

262 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 07/31/2020)

08/03/2020

263 NOTICE OF APPEAL 168 Electronic Clerk's Notes/Order, 172 Electronic Clerk's Notes/Order, 175 Memorandum of Decision, 206 Electronic Clerk's Notes/Order, 225 Memorandum by Thomas M. Hodgson Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 8/24/2020. (Kanwit,

Thomas) Modified on 8/3/2020 to Correct Docket Text to Add CM/ECF Documents Links to Orders Being Appealed as Counsel Failed to Follow the CM/ECF Prompts When Filing the Notice of Appeal) (Paine, Matthew). (Entered: 08/03/2020)

08/04/2020

264 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 263 Notice of Appeal. (Paine, Matthew) (Entered: 08/04/2020)

08/04/2020 265 USCA Case Number 20-1768 for 263 Notice of Appeal filed by Thomas M. Hodgson. (Paine, Matthew) (Entered: 08/04/2020)

08/05/2020 266 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 08/05/2020)

08/07/2020

267 MOTION to Modify Bail Conditions by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Affidavit Sellstrom Declaration)(Sellstrom, Oren) (Entered: 08/07/2020)

08/07/2020

268 NOTICE by Steven J. Souza of Continued Violations (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Kanwit, Thomas) (Entered: 08/07/2020)

08/10/2020

269 Judge William G. Young: ORDER entered. ORDER REVOKING BAIL. The Court hereby revokes the bail of Carlos Gutierrez-Deleon. (Paine, Matthew) (Entered: 08/10/2020)

08/12/2020 270 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 08/12/2020)

08/18/2020 271 MOTION Return Detainee After Medical Appointment by Steven J. Souza.(Kanwit, Thomas) (Entered: 08/18/2020)

08/20/2020

272 AFFIDAVIT in Support re 267 MOTION to Modify Bail Conditions filed by Steven J. Souza. (Attachments: # 1 Exhibit declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit CV)(Kanwit, Thomas) (Entered: 08/20/2020)

08/20/2020

273 MEMORANDUM in Opposition re 267 MOTION to Modify Bail Conditions filed by Steven J. Souza. (Kanwit, Thomas) (Entered: 08/20/2020)

08/24/2020

274 Judge William G. Young: ELECTRONIC ORDER entered granting 271 Motion to Return Detainee After Medical Appointment by Steven J. Souza. (Gaudet, Jennifer) (Entered: 08/24/2020)

08/24/2020

275 MOTION Revoke Bail Paul Schnaider by Steven J. Souza. (Attachments: # 1 Exhibit A Declaration)(Kanwit, Thomas) (Entered: 08/24/2020)

08/25/2020

276 MOTION for Leave to File Reply re Motion To Modify Bail Conditions by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 08/25/2020)

08/25/2020

277 Judge William G. Young: ELECTRONIC ORDER entered granting 276 Motion for Leave to File Reply re Motion To Modify Bail Conditions; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Gaudet, Jennifer) (Entered: 08/25/2020)

08/25/2020

278 Judge William G. Young: ELECTRONIC ORDER entered granting 275 Motion to Revoke Bail as to Paul Schnaider by Steven J. Souza. (Gaudet, Jennifer) (Entered: 08/25/2020)

08/26/2020

279 Joint MOTION for Extension of Time by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Brown, Michael) (Entered: 08/26/2020)

08/26/2020

280 REPLY to Response to 267 MOTION to Modify Bail Conditions filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 08/26/2020)

08/28/2020 281 NOTICE by Steven J. Souza of Intent to Transfer Out (Attachments: # 1 Exhibit A)(Kanwit, Thomas) (Entered: 08/28/2020)

08/28/2020

282 EMERGENCY Notice of Bond Violations and MOTION to Revoke Bail by Steven J. Souza. (Attachments: # 1 Exhibit victim injuries, # 2 Exhibit police report, # 3 Exhibit criminal history report)(Gaudet, Jennifer) (Entered: 08/29/2020)

08/28/2020

283 Opposition re 282 MOTION to Revoke Bail filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Gaudet, Jennifer) (Entered: 08/29/2020)

08/28/2020 284 State Court docket filed by Steven J. Souza. (Gaudet, Jennifer) (Entered: 08/31/2020)

08/31/2020

285 UNOPPOSED MOTION for Limited Exception to Release Conditions for Desmond Joseph by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Declaration of Desmond Joseph)(Gaudet, Jennifer) (Entered: 08/31/2020)

08/31/2020

286 Judge William G. Young: ELECTRONIC ORDER entered granting 285 Unopposed Motion for Limited Exception to Release Conditions for Desmond Joseph by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Gaudet, Jennifer) (Entered: 08/31/2020)

09/02/2020 287 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 09/02/2020)

09/03/2020

288 MOTION Revocation of Bail re 282 MOTION to Revoke Bail Renewed by Steven J. Souza.(Kanwit, Thomas) (Entered: 09/03/2020)

09/03/2020 289 Judge William G. Young: ELECTRONIC ORDER entered granting 288 Renewed Motion to Revoke Bail as to Lucas Valentim. (Gaudet, Jennifer) (Entered: 09/03/2020)

09/03/2020

290 Judge William G. Young: ELECTRONIC ORDER entered finding as moot 282 Motion to Revoke Bail. Renewed Motion filed 9/3/2020. (Gaudet, Jennifer) (Entered: 09/03/2020)

09/04/2020 291 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 09/04/2020)

09/08/2020 292 Assented to MOTION Allow Transfer of Detainee out of BCHOC by Steven J. Souza.(Kanwit, Thomas) (Entered: 09/08/2020)

09/10/2020

293 Judge William G. Young: ELECTRONIC ORDER entered granting 292 Assented to Motion to Allow Transfer of Detainee out of BCHOC by Steven J. Souza. (Gaudet, Jennifer) (Entered: 09/10/2020)

09/11/2020

294 Joint MOTION to Vacate 147 Order, by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Ahmad, Muneer) (Entered: 09/11/2020)

09/14/2020

295 NOTICE of Appearance by Andres R. O'Laughlin on behalf of Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves (O'Laughlin, Andres) (Entered: 09/14/2020)

09/21/2020

297 UNOPPOSED MOTION to Modify Bail Conditions for Desmond Joseph by Plaintiffs. (Attachments: # 1 Declaration of Desmond Joseph)(Gaudet, Jennifer) (Entered: 09/24/2020)

09/23/2020 296 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 09/23/2020)

09/24/2020

298 Judge William G. Young: ELECTRONIC ORDER entered granting 297 Unopposed Motion to Modify Bail Conditions for Desmond Joseph. (Gaudet, Jennifer) (Entered: 09/24/2020)

09/25/2020

299 NOTICE by Steven J. Souza of Violations of Bond (Attachments: # 1 Exhibit A Declaration, # 2 Exhibit B Map of GPS Points, # 3 Exhibit C Map of GPS Points)(Kanwit, Thomas) (Entered: 09/25/2020)

09/29/2020 300 NOTICE by Steven J. Souza of Transfer Out (Kanwit, Thomas) (Entered: 09/29/2020)

09/30/2020

301 MOTION to Modify Bail Conditions for Kavon Mahaedo by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Mahaedo Declaration)(Sellstrom, Oren) (Entered: 09/30/2020)

09/30/2020 302 Judge William G. Young: ELECTRONIC ORDER entered granting 301 Motion to Modify Bail Conditions for Kavon Mahaedo. (Gaudet, Jennifer) (Entered: 09/30/2020)

10/01/2020

303 MOTION to Modify Bail Conditions for Victor Peguero by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Declaration of Victor Peguero)(Sellstrom, Oren) (Entered: 10/01/2020)

10/01/2020

304 Judge William G. Young: ELECTRONIC ORDER entered granting 303 Unopposed Motion to Modify Bail Conditions for Victor Peguero. (Gaudet, Jennifer) (Entered: 10/01/2020)

10/06/2020 305 NOTICE by Steven J. Souza of Status of Unit B (Kanwit, Thomas) (Entered: 10/06/2020)

10/07/2020

306 Judge William G. Young: ELECTRONIC ORDER entered granting 294 Joint Motion to Vacate Bail Order of Karina Rojas Vargas. (Gaudet, Jennifer) (Entered: 10/07/2020)

10/07/2020

307 Judge William G. Young: ELECTRONIC ORDER entered granting 251 Motion for Leave to Appear Pro Hac Vice. Added Sara Zampierin. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Paine, Matthew) (Entered: 10/07/2020)

10/07/2020 308 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 10/07/2020)

10/08/2020 309 MOTION Return Detainee After Medical Appointment by Steven J. Souza.(Kanwit, Thomas) (Entered: 10/08/2020)

10/09/2020

310 Opposition re 309 MOTION Return Detainee After Medical Appointment filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Sellstrom, Oren) (Entered: 10/09/2020)

10/09/2020

311 Judge William G. Young: ELECTRONIC ORDER entered granting 309 Motion Return Detainee After Medical Appointment by Steven J. Souza. (Gaudet, Jennifer) (Entered: 10/09/2020)

10/13/2020

312 Joint MOTION for Extension of Time by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Brown, Michael) (Entered: 10/13/2020)

10/14/2020

313 Judge William G. Young: ELECTRONIC ORDER entered granting 312 Joint Motion to Extend Case Schedule. The case is placed on the running trial list for May 2021. (Gaudet, Jennifer) (Entered: 10/14/2020)

10/14/2020

314 Set/Reset Scheduling Order Deadlines: Fact Discovery due on 12/4/2020; Expert Discovery due 1/8/2020; Dispositive Motions due by 1/29/2021. Ready for Trial on 5/3/2021 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 10/14/2020)

10/22/2020

315 Assented to MOTION to Modify Bail Conditions Hector JaramilloQuiroz by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Declaration of Hector JaramilloQuiroz)(Sellstrom, Oren) (Entered: 10/22/2020)

10/22/2020

316 Assented to MOTION to Modify Bail Conditions Kavon Mahadeo by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Mahadeo Declaration)(Sellstrom, Oren) (Entered: 10/22/2020)

10/22/2020

317 Judge William G. Young: ELECTRONIC ORDER entered granting 315 Assented to MOTION to Modify Bail Conditions Hector Jaramillo-Quiroz (Paine, Matthew) (Entered: 10/22/2020)

10/22/2020

318 Judge William G. Young: ELECTRONIC ORDER entered granting 316 Assented to MOTION to Modify Bail Conditions Kavon Mahadeo. (Paine, Matthew) (Entered: 10/22/2020)

10/22/2020 319 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 10/22/2020)

10/23/2020 320 MOTION to Compel Compliance with Rule 34 Notice of Inspection by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.

(Attachments: # 1 Text of Proposed Order)(O'Laughlin, Andres) (Entered: 10/23/2020)

10/23/2020

321 MEMORANDUM in Support re 320 MOTION to Compel Compliance with Rule 34 Notice of Inspection filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (O'Laughlin, Andres) (Entered: 10/23/2020)

10/23/2020

322 DECLARATION re 320 MOTION to Compel Compliance with Rule 34 Notice of Inspection by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit A - Order - Chunn et al. v. Edge_Order for Inspection, # 2 Exhibit B - Order - Braggs v. Dunn - GRANTING MOTION FOR ON-SITE PRISON INSPECTIONS, # 3 Exhibit C - R34 Request - Savino v. Souza_Requests of Inspection, # 4 Exhibit D - 2020.07.23 Brown Kanwit Email Exchange RE_ Savino v. Souza - Requests for Inspection, # 5 Exhibit E - R34 Request - Response to Requests for Inspection, # 6 Exhibit F - 2020.09.08 Brown Kanwit Email Exchange RE_ Response to Requests for Inspection, # 7 Exhibit G - Order Coreas v. Bounds_Order of Inspection, # 8 Exhibit H - Order - Garcia v. Wolf_Agreed Inspection Protocol, # 9 Exhibit I - Inspection Report BCHOC 7-8-20)(O'Laughlin, Andres) (Entered: 10/23/2020)

10/26/2020

323 MOTION Allow Return of Detainne Following Medical Appointment by Steven J. Souza.(Kanwit, Thomas) (Entered: 10/26/2020)

10/28/2020

324 USCA Judgment as to 193 Notice of Appeal filed by Julio Cesar Medeiros Neves, Steven J. Souza, Thomas M. Hodgson, U.S. Immigration and Customs Enforcement (ICE), Rick Raemisch, Todd Lyons (Paine, Matthew) (Entered: 10/29/2020)

10/28/2020

325 MANDATE of USCA as to 193 Notice of Appeal filed by Julio Cesar Medeiros Neves, Steven J. Souza, Thomas M. Hodgson, U.S. Immigration and Customs Enforcement (ICE), Rick Raemisch, Todd Lyons. Appeal 193 Terminated (Paine, Matthew) (Entered: 10/29/2020)

10/29/2020

326 Judge William G. Young: ELECTRONIC ORDER entered granting 323 Motion to Allow Return of Detainne Following Medical Appointment by Steven J. Souza. (Gaudet, Jennifer) (Entered: 10/29/2020)

11/03/2020 327 USCA Judgment as to 263 Notice of Appeal filed by Thomas M. Hodgson. (Paine, Matthew) (Entered: 11/04/2020)

11/03/2020

328 MANDATE of USCA as to 263 Notice of Appeal filed by Thomas M. Hodgson. Appeal 263 Terminated (Paine, Matthew) (Entered: 11/04/2020)

11/05/2020 329 NOTICE by Steven J. Souza of Intent to Remove (Kanwit, Thomas) (Entered: 11/05/2020)

11/05/2020

330 MOTION for Reconsideration of Bail Denials and Renewed Motion for Release on Bail of Class Members with Pending Bail Applications by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Ahmad, Muneer) (Entered: 11/05/2020)

11/12/2020

331 MOTION for Extension of Time to 11/16/20 to Oppose Motion to Compel (dkt. 320) by Steven J. Souza.(Kanwit, Thomas) (Modified on 11/12/2020 to Correct CM/ECF Filing Event) (Paine, Matthew). (Entered: 11/12/2020)

11/17/2020

332 Judge William G. Young: ELECTRONIC ORDER entered granting 331 Motion for Extension of Time to File Response/Reply. (Gaudet, Jennifer) (Entered: 11/17/2020)

11/17/2020

333 MEMORANDUM in Opposition re 320 MOTION to Compel Compliance with Rule 34 Notice of Inspection filed by Steven J. Souza. (Kanwit, Thomas) (Entered: 11/17/2020)

11/18/2020

334 Judge William G. Young: ELECTRONIC ORDER entered denying without prejudice 320 Motion to Compel Compliance with Rule 34 Notice of Inspection by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. The motion is denied without prejudice to a renewed motion after counsel confer to address the respondent's concerns. (Gaudet, Jennifer) (Entered: 11/18/2020)

11/18/2020 335 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 11/18/2020)

11/23/2020

336 Assented to MOTION for Extension of Time to 11/30/20 to File Opposition to Motion to Modify (Dkt # 330) by Steven J. Souza.(Kanwit, Thomas) (Entered: 11/23/2020)

11/30/2020 337 NOTICE by Steven J. Souza of Intent to Transfer Out (Kanwit, Thomas) (Entered: 11/30/2020)

12/01/2020

338 Judge William G. Young: ELECTRONIC ORDER entered granting 336 Assented to MOTION for Extension of Time to 11/30/20 to File Opposition to Motion to Modify ECF No. 330 (Paine, Matthew) (Entered: 12/01/2020)

12/02/2020

339 MEMORANDUM in Opposition re 330 MOTION for Reconsideration of Bail Denials and Renewed Motion for Release on Bail of Class Members with Pending Bail Applications filed by Steven J. Souza. (Attachments: # 1 Exhibit A Greenbaum Declaration, # 2 Exhibit Roster)(Kanwit, Thomas) (Entered: 12/02/2020)

12/02/2020

340 Assented to MOTION for Extension of Time to 12/2/20 to File Opposition to # 330 by Steven J. Souza.(Kanwit, Thomas) (Entered: 12/02/2020)

12/03/2020

341 Judge William G. Young: ELECTRONIC ORDER entered granting 340 Defendant's Assented to Motion for Extension of Time to file response re 330 MOTION for Reconsideration of Bail Denials and Renewed Motion for Release on Bail of Class Members with Pending Bail Applications. (Gaudet, Jennifer) (Entered: 12/03/2020)

12/03/2020

342 MEMORANDUM in Opposition re 330 MOTION for Reconsideration of Bail Denials and Renewed Motion for Release on Bail of Class Members with Pending Bail Applications (Leave to File Granted) filed by Steven J. Souza. (Attachments: # 1 Exhibit A Declaration, # 2 Exhibit Roster)(Kanwit, Thomas) (Entered: 12/03/2020)

12/03/2020

343 NOTICE of Appearance by Christina Parascandola on behalf of Steven J. Souza (Attachments: # 1 Certificate of service)(Parascandola, Christina) (Entered: 12/03/2020)

12/04/2020 344 Joint MOTION to Extend Case Schedule. (Kanwit, Thomas)

Modified on 12/7/2020 to Correct Docket Text and CM/ECF Filing Event (Paine, Matthew).

(Entered: 12/04/2020)

12/07/2020

345 MEMORANDUM in Opposition re 330 MOTION for Reconsideration of Bail Denials and Renewed Motion for Release on Bail of Class Members with Pending Bail Applications CORRECTED filed by Steven J. Souza. (Attachments: # 1 Exhibit A Declaration, # 2 Exhibit B Roster, # 3 Exhibit C Declaration, # 4 Exhibit D IJ Bond Decision)(Kanwit, Thomas) (Entered: 12/07/2020)

12/10/2020

346 Assented to MOTION for Leave to File Reply Brief by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 12/10/2020)

12/11/2020

347 Judge William G. Young: ELECTRONIC ORDER entered granting 346 Assented to MOTION for Leave to File Reply Brief ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Paine, Matthew) (Entered: 12/11/2020)

12/11/2020

348 REPLY to Response to 330 MOTION for Reconsideration of Bail Denials and Renewed Motion for Release on Bail of Class Members with Pending Bail Applications filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit A)(Sellstrom, Oren) (Entered: 12/11/2020)

12/14/2020 349 Emergency MOTION Revoke Bond by Steven J. Souza. (Attachments: # 1 Exhibit A Declaration)(Kanwit, Thomas) (Entered: 12/14/2020)

12/14/2020

350 Judge William G. Young: ELECTRONIC ORDER entered granting 349 Emergency Motion to Revoke Bond. (Gaudet, Jennifer) (Entered: 12/14/2020)

12/15/2020 351 NOTICE of Appearance by Michelle M. Ramus on behalf of Steven J. Souza (Ramus, Michelle) (Entered: 12/15/2020)

12/18/2020 352 Judge William G. Young: ORDER entered. (Sonnenberg, Elizabeth) (Entered: 12/18/2020)

12/21/2020

353 Joint MOTION to Modify Conditions of Bail by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Brown, Michael) (Entered: 12/21/2020)

12/22/2020

354 Judge William G. Young: ELECTRONIC ORDER entered granting 353 Joint Motion to Modify Conditions of Bail by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Gaudet, Jennifer) (Entered: 12/22/2020)

12/28/2020 355 NOTICE by Steven J. Souza of Intent to Remove (Kanwit, Thomas) (Entered: 12/28/2020)

01/11/2021

356 ORDER REFERRING CASE to Alternative Dispute Resolution as of January 2021 Before Chief Magistrate Judge Kelley.(Paine, Matthew) (Entered: 01/11/2021)

01/11/2021

357 ELECTRONIC NOTICE of Hearing. Alternative Dispute Resolution Hearing set for 1/22/2021 09:30 AM by video before Magistrate Judge M. Page Kelley. Telephone Conference re mediation set for 1/21/2021 11:00 AM before Magistrate Judge M. Page Kelley. A brief mediation

memorandum addressing both the merits of the case and the filing party's settlement position should be submitted to Kellyann_Belmont@mad.uscourts.gov no later than January 15, 2020 The mediation memorandum should be marked "Confidential Not for Docketing" and is not to be served upon opposing parties.

Counsel are directed to be present at the mediation with their respective clients or representatives thereof without limitation on their authority to negotiate and commit to settlement terms that, in their discretion, may be acceptable. It shall be understood (a) that all parties and counsel will participate in this court-sponsored mediation in good faith and with the interest of settling the matter on mutually acceptable terms, (b) that the entire mediation process, including all communications during any inperson, video or audio part thereof, is confidential, (c) that all statements made during the course of mediation are privileged settlement discussions, made without prejudice to any party's legal position, and inadmissible for any purpose in any legal proceeding, (d) that no party, participant, or representative shall seek in any proceeding to hereafter compel the mediator to testify and/or produce any document with respect to the mediation, and (e) that all parties, counsel and other participants agree that, by participating in this courtsponsored mediation, they are bound by these conditions and shall keep confidential all communications exchanged during the mediation process.(Belmont, Kellyann) (Entered: 01/11/2021)

01/14/2021 358 NOTICE of Appearance by Michael Fitzgerald on behalf of Steven J. Souza (Fitzgerald, Michael) (Entered: 01/14/2021)

01/21/2021

359 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Video Conference held on 1/21/2021 re mediation. Counsel and the Court discuss upcoming mediation. Mediation set for 1/22/2021 at 9:30AM by video. (Court Reporter: Not recorded)(Attorneys present: Various) (Belmont, Kellyann) (Entered: 01/21/2021)

01/21/2021 360 NOTICE by Steven J. Souza of Intent to Transfer (Kanwit, Thomas) (Entered: 01/21/2021)

01/22/2021

362 ELECTRONIC NOTICE of Hearing. Further Alternative Dispute Resolution Hearing set for 2/4/2021 02:00 PM in by video before Magistrate Judge M. Page Kelley. (Belmont, Kellyann) (Entered: 01/22/2021)

01/22/2021 363 MOTION Decertify the Certified Class by Steven J. Souza. (Attachments: # 3 Text of Proposed Order)(Ramus, Michelle)

Modified on 1/24/2021 to Correct Docket Text and Refile Memorandum of Law in Support (Paine, Matthew).

(Entered: 01/22/2021)

01/24/2021

364 MEMORANDUM in Support re 363 MOTION Decertify the Certified Class filed by Steven J. Souza. (Attachments: # 1 Exhibit A)(Paine, Matthew) (Entered: 01/24/2021)

01/24/2021

365 Notice of correction to docket made by Court staff. Correction: Docket Entry 363 MOTION Decertify the Certified Class Corrected Because: The Memorandum of Law in Support Was Attached to the Motion by Counsel and Refiled in Accordance to CM/ECF Administrative Procedures Section (G)(4). (Paine, Matthew) (Entered: 01/24/2021)

01/25/2021

366 Judge William G. Young: ELECTRONIC ORDER entered: Magistrate Judge Kelley reports that mediation is ongoing and the parties will meet again on February 4, 2021. Until such time as Magistrate Judge Kelley reports that mediation is unsuccessful, deadlines in the case are suspended. Within five days of any report that mediation is unsuccessful, the parties shall file a joint status report with the Court, setting out a proposed schedule for the filing of any motions and for any discovery deadlines affected by the suspension.(Gaudet, Jennifer) (Entered: 01/25/2021)

01/25/2021 367 NOTICE by Steven J. Souza of Cancellation of Transfer Out (Kanwit, Thomas) (Entered: 01/25/2021)

01/27/2021

368 Assented to MOTION for Limited Exception to Release Conditions for Kavon Mahadeo by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Declaration of Kavon Mahadeo)(Zampierin, Sara) (Entered: 01/27/2021)

01/27/2021

369 Judge William G. Young: ELECTRONIC ORDER entered granting 368 Assented to MOTION for Limited Exception to Release Conditions for Kavon Mahadeo (Paine, Matthew) (Entered: 01/27/2021)

02/04/2021

371 ELECTRONIC NOTICE of Hearing. Further Alternative Dispute Resolution Hearing set for 2/12/2021 10:00 AM by video before Magistrate Judge M. Page Kelley. Plaintiffs to join at 10:00AM and defendants to join at 11:00AM. (Belmont, Kellyann) (Entered: 02/04/2021)

02/04/2021 372 NOTICE by Steven J. Souza of Intent to Transfer (Kanwit, Thomas) (Entered: 02/04/2021)

02/08/2021

375 Judge William G. Young: ELECTRONIC ORDER entered re 372 Defendant's Notice of Transfer out of Bristol filed by Steven J. Souza. Mr. Reyes-Batista shall not be transferred until he has been tested for COVID-19 and found negative. A report shall be issued to the Court. (Gaudet, Jennifer) (Entered: 02/08/2021)

02/09/2021

376 Judge William G. Young: ELECTRONIC ORDER entered. The parties shall by February 12, 2021, brief the effect, if any, of the Memorandum of the Department of Homeland Security on January 20, 2021, and the subsequent temporary restraining order of the United States District Court for the Southern District of Texas as they may pertain to the transfer of Petitioner in preparation for removal as noted in Respondents Notice of Transfer, ECF No. 372. Since removal of the Petitioner is no longer imminent, and notice will be given the Court should it reoccur, no further order is necessary at this time.(Gaudet, Jennifer) (Entered: 02/09/2021)

02/11/2021 378 NOTICE by Steven J. Souza of Release (Kanwit, Thomas) (Entered: 02/11/2021)

02/11/2021 379 NOTICE by Steven J. Souza Regarding the Court's February 9, 2021 Order (Ramus, Michelle) (Entered: 02/11/2021)

02/11/2021

380 Assented to MOTION for Limited Exception to Release Conditions for Kavon Mahadeo by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Declaration of Kavon Mahadeo)(Zampierin, Sara) (Entered: 02/11/2021)

02/12/2021

382 ELECTRONIC NOTICE of Hearing. Further Alternative Dispute Resolution Hearing set for 2/24/2021 11:00 AM in by video before Magistrate Judge M. Page Kelley. (Belmont, Kellyann) (Entered: 02/12/2021)

02/12/2021 383 Joint MOTION to Stay Briefing by Steven J. Souza.(Kanwit, Thomas) (Entered: 02/12/2021)

02/16/2021

384 Judge William G. Young: ELECTRONIC ORDER entered granting 70 Motion for Leave to File Law Student Appearances for Kokotailo, Pinkham, Rey, and Yan by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves; granting 71 Motion for Leave to File Law Student Appearances for Choi, Crowell, and Mehta by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Gaudet, Jennifer) (Entered: 02/16/2021)

02/16/2021

385 Judge William G. Young: ELECTRONIC ORDER entered granting 380 Assented to Motion for Limited Exception to Release Conditions for Kavon Mahadeo by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Gaudet, Jennifer) (Entered: 02/16/2021)

02/16/2021

386 Judge William G. Young: ELECTRONIC ORDER entered granting 383 Joint Motion to Stay Briefing by Steven J. Souza. The electronic order entered on February 9, 2021 is vacated. (Gaudet, Jennifer) (Entered: 02/16/2021)

02/18/2021 387 NOTICE by Steven J. Souza of Release (Kanwit, Thomas) (Entered: 02/18/2021)

02/18/2021 388 NOTICE by Steven J. Souza of Intent to Transfer (Kanwit, Thomas) (Entered: 02/18/2021)

02/22/2021

389 Assented to MOTION for Limited Exception to Release Conditions for Kavon Mahadeo by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit Declaration of Kavon Mahadeo)(Wishnie, Michael) (Entered: 02/22/2021)

02/22/2021

390 OBJECTION to Notice of Intent to Transfer re 388 Notice by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit A)(Zampierin, Sara)

Modified on 2/23/2021 to Correct Docket Text and CM/ECF Filing Event As Counsel Incorrectly Filed the Objection as a Motion (Paine, Matthew).

(Entered: 02/22/2021)

02/22/2021

391 Judge William G. Young: ELECTRONIC ORDER entered granting 389 Assented to Motion for Limited Exception to Release Conditions for Kavon Mahadeo. (Gaudet, Jennifer) (Entered: 02/22/2021)

02/26/2021

393 Judge William G. Young: ELECTRONIC ORDER entered finding as moot 25 Motion for Leave to File Excess Pages. (Gaudet, Jennifer) (Entered: 02/26/2021)

02/26/2021

394 Judge William G. Young: ELECTRONIC ORDER entered finding as moot 40 Motion for Order; finding as moot 61 Motion for Extension of Time to Complete Discovery; finding as moot 63 Motion for Reconsideration ; finding as moot 118 Motion for Modification; finding as moot 173 Motion ; finding as moot 184 Motion for Leave to File Excess Pages ; finding as moot 199 Motion for Modification; finding as moot 226 Motion for Modification; finding as moot 237 Motion to

Compel; finding as moot 239 Motion to Continue; finding as moot 267 Motion for Modification; finding as moot 279 Motion for Extension of Time (Gaudet, Jennifer) (Entered: 02/26/2021)

03/17/2021 395 USCA OPINION (20-2117) as to the petition for a writ of mandamus. (Paine, Matthew) (Entered: 03/17/2021)

03/17/2021 396 USCA JUDGMENT (20-2117) The petition for a writ of mandamus is denied as without merit. (Paine, Matthew) (Entered: 03/17/2021)

04/06/2021 397 Joint MOTION for Settlement by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 04/06/2021)

04/06/2021

398 SETTLEMENT AGREEMENT by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Sellstrom, Oren) (Entered: 04/06/2021)

04/06/2021

399 Joint MEMORANDUM in Support re 397 Joint MOTION for Settlement filed by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves. (Attachments: # 1 Brown Declaration)(Sellstrom, Oren) (Entered: 04/06/2021)

04/06/2021

400 Joint MOTION to Modify Bail Conditions by Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves.(Sellstrom, Oren) (Entered: 04/06/2021)

04/07/2021

401 Judge William G. Young: ELECTRONIC ORDER entered granting 400 Joint Motion to Modify Conditions of Bail. (Gaudet, Jennifer) (Entered: 04/07/2021)

04/07/2021

402 Judge William G. Young: ORDER entered granting 397 Joint Motion for Preliminary Approval of Class Action Settlement. Fairness hearing set for Monday, May 3, 2021 at 11:00 AM BY VIDEO. (Gaudet, Jennifer) (Entered: 04/07/2021)

04/07/2021 403 Set/Reset Hearings: Fairness Hearing set for 5/3/2021 at 11:00 AM in Remote Proceeding : Boston before Judge William G. Young.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.
For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.
(Gaudet, Jennifer) (Entered: 04/07/2021)
04/08/2021 404 NOTICE of Proposed Class Action Settlement. (Gaudet, Jennifer) (Entered: 04/08/2021)

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 Case 1:20-cv-10617-WGY Document 11 Filed 03/27/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________

)

Maria Alejandra Celimen Savino, et al., )

)

Petitioners-Plaintiffs,

)

)

v.

)

)

Thomas Hodgson, Bristol County Sheriff )

in his Official Capacity, et al.,

)

)

Respondents-Defendants.

)

____________________________________ )

Case No. 1:20-cv-10617 WGY

NOTICE AND MOTION FOR TEMPORARY RESTRAINING ORDER

Please take notice that, as soon as they may be heard, Plaintiff-Petitioners hereby move, pursuant to Fed. R. Civ. P. 65, for a temporary restraining order and humanitarian release for themselves and all those similarly situated – specifically, all current and future civil immigration detainees held by Respondents-Defendants at the Bristol County House of Corrections and C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts. The following relief is requested:
1. Release of plaintiffs and all similarly situated detainees in Bristol County Immigration Detention Facilities on their own recognizance with appropriate precautionary public health measures, or, in the alternative, release plaintiffs and all similar situated detainees in Bristol County Immigration Detention Facilities into community-based alternatives to detention, such as conditional release, supervision or electronic monitoring, with appropriate precautionary public health measures;
2. [In the alternative,] implementation of public health guidance and protocols designed to prevent the transmission of COVID-19;

Case 1:20-cv-10617-WGY Document 11 Filed 03/27/20 Page 2 of 4

3. Ceasing placing new detainees in Bristol County Immigration Detention Facilities until

all public health protocols designed to prevent the transmission of COVID-19 have been

implemented; and

4. Effectuating the release of Plaintiffs and all similarly situated detainees at Bristol County

Immigration Detention Facilities upon the posting of the appropriate bond, if bond was

previously set by ICE or an Immigration Judge.

This motion is supported by an accompanying Memorandum of Law, Petition for Writ of

Habeas Corpus and Complaint for Injunctive and Declaratory Relief, and by declarations of the

named Plaintiffs, other similarly situated detainees, relatives of detainees, attorneys working on

their behalf, and leading medical and public health experts.

Notice – As further detailed in the Declaration of Oren Sellstrom in Support of

Temporary Restraining Order, filed concurrently herewith, on March 27, 2020 at approximately

9:00 a.m., counsel for Plaintiffs sent an e-mail to Attorney Robert Novack, Assistant U.S.

Attorney Eve Piemonte, Assistant U.S. Attorney Michael Sady, and Assistant U.S. Attorney

Rayford Farquhar to advise of the emergency reasons requiring them to seek a temporary

restraining order and attaching copies of the Complaint. At approximately 7:30 p.m. on March

27, 2020, counsel for Plaintiffs emailed the above-referenced counsel advising them that

Plaintiffs were preparing to file the temporary restraining order and attaching all documents to be

filed.

Dated: March 27, 2020

Respectfully Submitted,

/s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319)
Ivan Espinoza-Madrigal†

Case 1:20-cv-10617-WGY Document 11 Filed 03/27/20 Page 3 of 4
Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0606
osellstrom@lawyersforcivilrights.org Grace Choi, Law Student Intern*
Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern*
Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
B. Rey, Law Student Intern* Megan Yan, Law Student Intern*
Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
† Motion for admission pro hace vice forthcoming.

Case 1:20-cv-10617-WGY Document 11 Filed 03/27/20 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as nonregistered participants. /s/ Oren Sellstrom

 
 Case 1:20-cv-10617-WGY Document 12 Filed 03/27/20 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

___________________________________

)

Maria Alejandra Celimen Savino, et al., )

)

Petitioners-Plaintiffs,

)

)

v.

)

)

Thomas Hodgson, Bristol County Sheriff )

in his Official Capacity, et al.,

)

)

Respondents-Defendants.

)

____________________________________ )

Case No. 1:20-cv-10617-WGY

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

Case 1:20-cv-10617-WGY Document 12 Filed 03/27/20 Page 2 of 24
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 5 FACTS ............................................................................................................................................ 8
I. The COVID-19 Pandemic is Spreading Quickly and Poses Grave Risk of Serious Illness and Death ............................................................................................................................................................... 8 II. Detention Facilities and Other Institutions that Harbor Individuals in Close Contact Are Especially Susceptible to a Deadly Outbreak of the Virus.................................................................... 10 III. Conditions in Bristol County Detention Facilities Pose a Considerable Risk to the Health of Detainees and to Public Health At Large. .......................................................................................... 13 LEGAL ARGUMENT.................................................................................................................. 16 I. In The Absence of Emergency Relief and Humanitarian Release, Medical Experts Confirm That Plaintiffs Will Suffer Infection, Illness, and Death. ...................................................................... 17 II. Plaintiffs are likely to succeed on the merits of their claims........................................................ 18 III. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’ Favor. ............... 21 CONCLUSION............................................................................................................................. 22
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TABLE OF AUTHORITIES Cases Alongi v. AMCO LLC, 2015 WL 12766154 (D. Mass. Sept. 23, 2015) ....................................... 17 Basank v. Decker, No. 20-cv-2518 (AN) (S.D.N.Y. Mar. 27, 2020) ....................................... 7, 21 Bell v. Wolfish, 441 U.S. 520 (1979) ............................................................................................ 20 CellInfo, LLC v. Am. Tower Corp., 352 F.Supp. 3d 127 (D. Mass. 2018) ................................... 17 Cirelli v. Town of Johnston School District, 888 F.Supp. 13 (D. R.I. 1995)................................ 17 Coronel v. Decker, No. 20-cv-2472 (AJN) (S.D.N.Y. Mar. 27, 2020)........................................... 7 DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989)................................ 19 Farmer v. Brennan, 511 U.S. 825 (1994) ..................................................................................... 20 Helling v. McKinney, 509 U.S. 25 (1993)................................................................................. 8, 19 Hutto v. Finney, 437 U.S. 678 (1978)........................................................................................... 19 In the Matter of the Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL
1307109, (N. D. Cal. March 19, 2020) ....................................................................................... 7 Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) .................................................. 7 Largess v. Supreme Judicial Court for State of Massachusetts, 317 F. Supp. 2d 77 (D. Mass.
2004) ......................................................................................................................................... 17 Monga v. Nat’l. Endowment for Arts, 323 F.Supp. 3d 75 (D. Me. 2018)..................................... 17 Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) ................................. 18 United Parcel Service, Inc. v. Local 25 of Intern. Broth. Of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Local 25), 421 F.Supp. 452 (D. Mass. 1976) ......... 17
3

Case 1:20-cv-10617-WGY Document 12 Filed 03/27/20 Page 4 of 24 United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev.
Mar. 17, 2020)............................................................................................................................. 7 United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, (S.D.N.Y. Mar. 19, 2020) ..... 7 Westenfelder v. Novo Ventures (U.S.), Inc., 797 F.Supp. 2d 188 (D. Mass. 2011) ...................... 17 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ............................................................ 17 Youngberg v. Romeo, 457 U.S. 307 (1982) .................................................................................. 20 Zadvydas v. Davis, 533 U.S. 678 (2001) ................................................................................ 19, 22 Statutes 8 U.S.C. § 1182(d)(5) ................................................................................................................... 23 8 U.S.C. § 1225(b) ........................................................................................................................ 23 8 U.S.C. § 1226(a) ........................................................................................................................ 22 8 U.S.C. § 1226(c) ........................................................................................................................ 23
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INTRODUCTION Petitioners-Plaintiffs (“Plaintiffs”) are civil immigration detainees held by RespondentsDefendants (“Defendants”) at the Bristol County House of Corrections (“BCHOC”) and C. Carlos Carreiro Immigration Detention Center (“Carreiro”) (collectively, “Bristol County Immigration Detention Facilities”), who respectfully seek emergency relief—humanitarian release and a temporary prohibition against new immigration admissions—from this Court because they are at imminent risk of contracting COVID-19. This extraordinary request is amply supported by life-threatening conditions of confinement, and the unprecedented circumstances surrounding the cascade of infections and death caused by the current global pandemic. Plaintiffs are kept in close quarters, are not provided with adequate medical care, are not able to distance themselves from others exhibiting symptoms, and are not equipped with materials to practice adequate hygiene to protect themselves. They seek relief on behalf of themselves and all other persons who are now – or will be in the future – held by Defendants in civil immigration detention in the Bristol County Immigration Detention Facilities. Despite the overwhelming consensus of public health authorities and experts—including doctors contracted by the U.S. Department of Homeland Security1—Defendants have repeatedly and unjustifiably refused to take critical and urgent steps to safeguard Plaintiffs’ health and to prevent the spread of COVID-19. Recognizing the urgency of present circumstances, judges, prosecutors and correctional authorities across the country have been ordering humanitarian releases to protect individuals and the public health. Such releases not only protect the people with the greatest vulnerability to serious illness and death COVID-19 from transmission of the virus, they also contribute to
1 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Richto-Congress-Re.pdf.
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greater risk mitigation for all people in custody or working in a prison, jail, or detention center, and reduces the burden on the surrounding community’s limited medical and health care infrastructure, as it lessens the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
Defendants stand apart from law enforcement and jail officials in Los Angeles, Oakland, New Jersey, New York City, Cleveland, Nashville, Houston, San Antonio, Charlotte, and countless other jurisdictions that are actively releasing thousands of individuals —both civil detainees and, in many cases, people serving sentences for criminal convictions —because of the imminent threat COVID-19 poses inside jails.
Every day, more court rulings explain the health risks—to inmates, guards, and the outside community at large—present in large prison populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of immigrant detainee in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (ordering the release of inmate in Federal Bureau of Prisons custody due, in part, to risk posed by COVID-19 in the facility); In the Matter of the Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal. March 19, 2020) (ordering change to conditions of bail for an individual to postpone incarceration, in part, in light of risk of vulnerability to the coronavirus); United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020). On March 22, the New Jersey Supreme Court also issued a consent order for the presumptive release of approximately 1,000 persons by March 26.
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Just this morning, on March 27, 2020, Judge Alison Nathan from the Southern District of New York granted a similar temporary restraining order filed by immigration detainees seeking humanitarian release in Coronel v. Decker, No. 20-cv-2472 (AJN) (S.D.N.Y. Mar. 27, 2020) (finding “likelihood of success on the[ ] claim the Government’s actions constitute deliberate indifference to Petitioners’ medical needs” and on procedural due process claim). So did Judge Analisa Torres, in a separate action on behalf of a different group of immigration detainees seeking humanitarian release. Basank v. Decker, No. 20-cv-2518 (AN) (S.D.N.Y. Mar. 27, 2020) (finding likelihood of success, granting TRO, and ordering immediate release on recognizance of petitioners).
This series of favorable rulings makes sense because the pandemic presents the paradigmatic situation in which emergency relief is necessary. The Eighth Amendment protects all 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.” Helling v. McKinney, 509 U.S. 25, 33 (1993). As civil immigration detainees, Plaintiffs enjoy even greater constitutional protections than those outlined in Helling because their confinement is meant to be non-punitive; they are merely awaiting the conclusion of pending immigration proceedings. The widespread presence of the virus has materially changed detention conditions as to renders Plaintiffs’ ongoing civil immigration detention unconstitutional. Conditions that may not have been likely to cause serious illness before the COVID-19 outbreak are now breeding grounds for the virus, and Defendants failure to take steps to mitigate this risk increase the likelihood that such harms will occur. Therefore, Plaintiffs respectfully urge this Court to follow the prevailing precedent and to order their immediate humanitarian release, and that of the other members of the class
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they propose to represent, because of the life-threatening conditions in Bristol County
Immigration Detention Facilities.
In the alternative, Plaintiffs respectfully request that the Court temporarily restrain
Defendants from admitting new detainees in the Bristol County Immigration Detention Facilities,
and grant the immediate release of the most medically vulnerable detainees, including the named
Plaintiffs, until such a time as an expedited hearing on a preliminary injunction can be held on
behalf of the full class. Plaintiffs also urge that Defendants be required to thoroughly and
professionally disinfect and sanitize the Bristol County Immigration Detention Facilities. Finally,
because there is no likelihood of harm to Defendants, Plaintiffs respectfully request that the
Court dispense with any requirements for security. FACTS2
I. The COVID-19 Pandemic is Spreading Quickly and Poses Grave Risk of Serious Illness and Death
Since January 21, 2020, when the first case was reported in the United States, COVID-19
has spread like wildfire into every region of this country. Declaration of Oren Sellstrom
(“Sellstrom Decl.”), Exhibit A. A respiratory illness that spreads from person to person contact,
transmitted mainly between people who are in close contact with one another, Declaration of
Gregg Gonsalves (“Gonsalves Decl.”), ¶ 15, but may also be carried on “surface[s] or object[s]
2 The information described below is based on public reports from the Center for Disease Control (“CDC”), World Health Organization (“WHO”) and the accompanying declarations of two medical and public health experts: Allen S. Keller, MD, who has extensive experience reporting on conditions of detention in ICE facilities, Declaration of Allen Keller (Keller Decl.), ¶¶ 2-3, and Gregg S. Gonsalves, Ph.D., an epidemiologist at the Yale School of Medicine and School of Public Health. The descriptions of conditions at Bristol County House of Corrections are drawn from March 18, 2020 and March 23, 2020 letters by Plaintiffs and similarly situated detainees to Defendant Hodgson (ECF 1, Exhibits A and B), as well as declarations from Plaintiff Julio Cesar Medeiros Neves, Plaintiff Maria Alejandra Celimen Savino, immigration attorney Ira Alkalay, who has multiple immigration clients housed in Bristol County, putative class members Cesar Francisco, Carlos Menjivar-Rojas, and Cesar Francisco Vargas Vasquez, as well as Cristina Oritz Ortiz and Yesenia Leyva, who are family members of putative class member Francisco Ortiz Ortiz.
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that ha[ve] the virus on them,” the virus produces mild to severe symptoms that can include fever, coughs, and shortness of breath. Sellstrom Decl., Ex. A. But in over 15% of cases, the illness is severe or deadly. Gonsalves Decl., ¶ 3. For thousands of patients, hospital-grade respirators are required to take any breaths, as the virus can progress from a mere fever to “lifethreatening pneumonia,” or septic shock, multi-organ failure, and death. Id, ¶ 2-3. As of March 27, 2020, there is neither a vaccine for COVID-19 nor a specific antiviral treatment. Sellstrom Decl., Ex. A. No one is immune. Gonsalves Decl., ¶ 5. Indeed, even young and healthy individuals have been found shockingly susceptible, as those between the ages of 20 and 44 represent 20% of all COVID-19 hospitalizations in the United States. Id.
COVID-19 was declared a global pandemic by the World Health Organization (WHO) on March 12, 2020. The United States leads the world in confirmed coronavirus cases, with 68,440 infections and 994 deaths, as of March 26, 2020. Sellstrom Decl., Exhibit C at 2. COVID-19 is present in all fifty states, as well as the District of Columbia, Puerto Rico, Guam, and the Virgin Islands. Id. In Massachusetts, since the first confirmed case on February 1, 2020, the number of infections has grown exponentially, with 2,417 confirmed cases of COVID-19 in the Commonwealth as of March 26, 2020, to say nothing of the “thousands of people” who are unable to be tested and are likely “carrying a potentially fatal disease that is easily transmitted.” Gonsalves Decl., ¶¶ 10, 11.
In response to the pandemic, Governor Charlie Baker declared a state of emergency on March 10, 2020 and issued subsequent emergency orders on March 15, 2020 and March 23, 2020 to close schools until May 4, 2020, close all nonessential businesses, and prohibit gatherings of more than 10 people. Id., ¶ 12. The purpose of these measures was to encourage
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residents to “practice social distancing at all times . . . to limit the spread of this highly contagious and deadly virus.” Id.
Globally, the WHO has reported that as of March 26, 2020, there are 462,684 confirmed cases (49,219 in the previous 24 hours) and 20,834 deaths (2,401 in the previous 24 hours). Sellstrom Decl., Exhibit D, at 1. Those over the age of 50, as well as those who are immunocompromised or have pre-existing medical conditions, ranging from diabetes to chronic respiratory disease, are especially at risk of serious symptoms or death. Id. at 10.
Without a single known immunity, treatment, vaccine, or cure, the only available effective measure to prevent serious illness or death from COVID-19 is to “prevent individuals from being infected with the virus.” Gonsalves Decl., ¶ 5. Accordingly, since the inception of the virus, infectious disease experts and epidemiologists have consistently recommended individuals and institutions engage in key preventative measures to limit viral transmission, including “maintaining physical distances,” avoiding individuals with “fever or respiratory symptoms,” performing hand hygiene, and cleaning and disinfecting objects and surfaces. Sellstrom Decl., Exh. D at 2; see also Gonsalves Decl., ¶ 17 (observing that because “community spread” is at “the root” of the pandemic, containment and social distancing, including “not touching common surfaces,” staying “at least 6-12 feet from other people,” and “identifying and isolating people who are ill,” are among “the best methods of prevention”).
II. Detention Facilities and Other Institutions that Harbor Individuals in Close Contact Are Especially Susceptible to a Deadly Outbreak of the Virus.
Despite these recommendations from public health experts around the world, basic hygienic and social distancing measures are largely absent in overcrowded, ill-managed prisons and other places of detention. In general, detention facilities, which are designed to “maximize control” over the incarcerated population, rather than to “minimize disease transmission or to
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efficiently deliver health care,” are enclosed environments, akin to the nursing homes and cruise ships that have formed the epicenters of multiple COVID-19 outbreaks in the United States and abroad. Gonsalves Decl., ¶ 16. Unsurprisingly, jails and prisons have been loci for historical viral outbreaks, including during the 2009 H1N1 epidemic and a 2012 influenza outbreak in Maine. Id. ¶¶ 16, 25. This pattern is already being repeated across the world. In China alone, over 500 cases of COVID-19 were reported across four detention facilities in both correctional officers and detainees. Id. ¶ 27. Inmates have also tested positive in county jails in both New Jersey and New York. Id. ¶ 28.
On March 15, 2020, the WHO Regional Office for Europe published Interim Guidance on “Preparedness, prevention, and control of COVID-19 in prisons and other places of detention.” Sellstrom Decl., Exhibit E. In particular, the WHO highlighted that detained individuals are “likely to be more vulnerable to the coronavirus disease . . . because of the confined conditions in which they live together for prolonged periods of time,” and that prisons, jails, and similar settings “may act as a source of infection, amplification and spread of infectious disease within and beyond prisons,” such that “[p]rison health is therefore widely considered as public health.” Id. at 1. The WHO emphasized that the provision of health care for people in places of detention is a “State responsibility” as well as that detained individuals should “enjoy the same standards of health care that are available in the outside community, without discrimination on the grounds of their legal status.” Id. at 3. The WHO made numerous recommendations for reducing the risk of a spread of coronavirus within a detention facility, including the “provision of adequate space between people, adequate air exchange, and routine disinfection of the environment (preferably at least once daily),” as well as “distributing food in room/cells instead of a common canteen” and supplying soap, water, and personal towels in
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“rooms/cells night and day.” Id. at 9 and 13. These recommendations are echoed by the Center for Disease Control’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, Sellstrom Decl., Exhibit F, which has called for, among other things, signage through facilities communicating the symptoms of COVID-19 and hand hygiene instructions that is “understandable for non-English speaking persons,” encouraging staff to stay home when sick, and providing “sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies.” Id. at 6, 7.
Beyond these preventative measures, there are continued calls to release detainees in order to promote greater social distancing, provide sufficient numbers of hygienic supplies, and prevent burnout and overloading among detention staff. For example, in Iran, amidst reports the pandemic had spread to Iranian prisons, Secretary of State Mike Pompeo has called for the immediate release of detained U.S. citizens on the ground their detention “amid increasingly deteriorating conditions defies basic human decency.” Gonsalves Decl., ¶ 27. Additionally, in acknowledgment of the “serious public health risks posed by prisons and detention centers,” the United Nations High Commissioner for Refugees has urged governments to “release prisoners and detainees” in the name of public health and safety. Id., ¶ 31.
In accordance with recommendations from public health experts and epidemiologists, law enforcement and jail officials from around the country are releasing individuals —both civil detainees and, in many cases, people serving sentences for criminal convictions —because of the threat COVID-19 poses inside jails and the vulnerability of these individuals. See, e.g., Maura Dolan, et al., California releases more jail inmates amid coronavirus crisis, L.A. Times (March 20, 2020), https://www.latimes.com/california/story/2020-03-20/california-releases-more-jailinmates-amid-coronavirus-crisis?; Quinn Wilson, KCSO: Inmate releases based on mitigating
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spread of COVID-19, reserved for non-violent offenders, Bakersfield Californian (March 19, 2020), https://www.bakersfield.com/news/breaking/kcso-inmate-releases-based-on-mitigatingspread-of-covid-/article_10ffc8a2-6a3d-11ea-b7b5-7b06de300554.html; see also Board of Correction City of New York, Letter from BOC re NYC Jails and Covid-19 (March 19, 2020) available at https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter- from-BOCre-NYC-Jails-and-COVID-19-2020-03-21.pdf.
III. Conditions in Bristol County Detention Facilities Pose a Considerable Risk to the Health of Detainees and to Public Health At Large.
As of March 27, 2020, detainees in Bristol County Facilities are subject to living conditions that violate nearly every recommendation of infectious disease experts across the globe—including the CDC and WHO—and, as such, are susceptible to a deadly outbreak of COVID-19. As reported by Ira Alkalay, an attorney with multiple clients who are presently Immigrations and Customs Enforcement (ICE) detainees at Bristol County House of Corrections (BCHOC), bunk beds in Unit B, a unit housing up to sixty-six immigration detainees, are located “between one and three feet apart,” leaving detainees without “adequate space to practice social distancing, which requires keeping six feet apart.” Declaration of Ira Alkalay, ¶ 4. Detainees eat meals off of plastic rays, which are “passed through three or four individuals before reaching a detainee for meals.” Id., ¶ 4. There are only four operational showers and two urinals for sixtysix detainees, and soap is “watered down and inadequate for proper hygiene.” Id., ¶ 7.
Perhaps most startlingly, there appear to be no policies in place to separate healthy inmates from those who are ill and potentially exposed; detainees have been assigned bunks next to individuals who have “test[ed] positive for tuberculosis,” or who must wait weeks to receive medical appointments, even when suffering from breathing issues. Id., ¶¶ 9-11. Plaintiff Julio Cesar Medeiros Neves, who is presently detained in Unit B, is currently held in “the same room
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as 49 other people,” and so has no opportunity to separate himself from other detainees to slow or stop any viral spread. Declaration of Julio Cesar Medeiros Neves (“Neves Decl.”), ¶¶ 2-6. Even amidst the presence of correctional officers with flu-like symptoms, as well as other detainees who are critically ill, detainees like Mr. Neves have not received basic hygienic supplies such as “sanitizer, disinfectant, or antiseptic” products. Id. ¶¶ 12, 14-15; see also Declaration of Yessenia Leyva, ¶ 4 (noting that at least two guards have come into the facility with coronavirus symptoms, including one guard who coughed incessantly). Despite Bristol County’s awareness of the horrifying conditions in their facilities—indeed, a March 23 letter signed by 52 detainees housed in Unit B highlighted the issue of multiple ill guards, overcrowded living conditions, a lack of signage in any language, and a lack of decontamination procedures—the facilities have failed to implement basic protocols to protect these vulnerable populations. ECF 1, Exhibit B; see also Declaration of Carlos Menjivar-Rojar, ¶¶ 7-9 (reporting that in Unit B, there is “no toilet paper, no napkins” and that without proper soap, bleach, or disinfectant, detainees are “pretty much just washing our hands with water.”). By contrast, in a display of naked cruelty, Defendants’ only response to the pandemic was to end visits by family members to individuals inside of the facility—despite the fact that families never had physical contact, but spoke over the phone or through glass, as well as that correctional officers continue to arrive at the jail. Declaration of Cristina Oritz Ortiz, ¶ 5.
These conditions occur through Bristol County’s facilities. According to Plaintiff Maria Alejandra Celimen Savino, who is detained in Alley EB in the C. Carlos Carreiro Immigration Detention Center, detainees lack access to basic necessities like toilet paper and standards for sanitation are “very poor,” with all cleaning in the unit conducted by detainees. Declaration of Maria Alejandra Celimen Savino (“Savino Decl.”), ¶ 8, 10. Ms. Savino, who has suffered from
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asthma since she was a child, is at especially high risk for COVID-19, but due the conditions of her civil detention, she is unable to engage in any kind of social distancing or preventative hygiene. Id., ¶ 5-7, 11-13. Other detainees, who are living with health conditions that place them at increased risk of severe COVID-19 symptoms, including weak immune systems, leukemia, diabetes, tuberculosis, emphysema and chronic obstructive pulmonary disease (COPD), are precluded from taking even basic steps to protect themselves because of the policies imposed and perpetuated by Defendants. ECF 1, Exh. B, at 6. For example, despite having asthma and only one working lung, Cesar Francisco Vargas Vasquez has been denied protective gear, as well as access to toilet paper and disinfectant. Declaration of Cesar Francisco Vargas Vasquez, ¶¶ 3, 5, 10. Mr. Vasquez has even been deprived of basic medical necessities, including an unexpired inhaler and medical attention for his injured hand. Id., ¶¶ 3-4; see also Ortiz Declaration, ¶¶ 4, 6 (describing conditions endured by her detained brother who suffers from respiratory difficulties, asthma and hernias and has a pacemaker, but is denied food beyond bread, coffee, and crackers as well as “supplies for personal cleaning.”).
As indicated above, medical experts have been clear that the conditions of confinement in facilities such as Bristol County are “unsafe and pose a danger to detained immigrants” in the midst of the present COVID-19 pandemic. Declaration of Allen Keller, ¶ 5. Dr. Allen Keller, an Associate Professor at New York University School of Medicine in the Departments of Medicine and Population Health with over 25 years of experience evaluating and treating vulnerable populations and evaluating prison conditions, has opined that the fatal combination of poor health conditions, insufficient hygiene, psychological stress, and close confinement has rendered immigration detention facilities “unsafe environments for immigrant detainees” such that
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“continued detention in these facilities poses an immediate risk and danger to their health and well-being and to the community.” Id., ¶¶ 1, 34.
LEGAL ARGUMENT For a temporary restraining order, the plaintiff “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. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The standard for issuing a temporary restraining order is substantially similar as that for a preliminary injunction. Largess v. Supreme Judicial Court for State of Massachusetts, 317 F. Supp. 2d 77, 81 (D. Mass. 2004). Relief depends on: (i) the likelihood that the movant will succeed on the merits; (ii) the possibility that, without an injunction, the movant will suffer irreparable harm; (iii) the balance of relevant hardships as between the parties; and (iv) the effect of the court's ruling on the public interest. See id.; see also Alongi v. AMCO LLC, 2015 WL 12766154 at *1 (D. Mass. Sept. 23, 2015) (granting preliminary injunction where issuance of order would “not cause undue inconvenience or loss” to defendant); CellInfo, LLC v. Am. Tower Corp., 352 F.Supp. 3d 127 (D. Mass. 2018) (granting preliminary injunction); Westenfelder v. Novo Ventures (U.S.), Inc., 797 F.Supp. 2d 188, 191 (D. Mass. 2011) (same); United Parcel Service, Inc. v. Local 25 of Intern. Broth. Of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 25), 421 F.Supp. 452, 458-59 (D. Mass. 1976); accord Monga v. Nat’l. Endowment for Arts, 323 F.Supp. 3d 75, 95-96 (D. Me. 2018) (granting TRO of immigrant high school student based on citizenship-based eligibility rule for national poetry reading competition; in relevant part, court observed one-time
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opportunities “constitute irreparable harm” that outweighed order’s impingement on discretionary program administration with “generalized goals”); Cirelli v. Town of Johnston School District, 888 F.Supp. 13, 16 (D. R.I. 1995) (granting TRO enjoining defendants from violating plaintiff’s First Amendment rights and noting even “temporary restraint on expression may constitution irreparable injury”).
In this case, as discussed below, all four factors overwhelmingly favor Plaintiffs. I. In The Absence of Emergency Relief and Humanitarian Release, Medical
Experts Confirm That Plaintiffs Will Suffer Infection, Illness, and Death. Medical and public health experts confirm that Defendants’ actions will cause severe injury and harm to Plaintiffs. This harm, serious illness or even death, is irreparable, as it “cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). Immediate relief and humanitarian release are essential to address the imminent hazards of COVID-19 on Plaintiffs. When Plaintiffs contract COVID-19 as a result of their close confinement they will have contracted an illness with no known cure. Gonsalves Decl., ¶ 5. This is true for all civil immigration detainees as the disease does not discriminate based on age or health status. Id., ¶¶ 5, 7. It is particularly true for Plaintiffs Celimen Savino and Medeiros Neves because they suffer from asthma, depression, and anxiety—all medical conditions that place them at much higher risks of developing serious and possibly lethal medical complications if they become infected. Id. ¶¶ 4, 7. Moreover, due to the close confinement conditions in Bristol County Immigration Detention Facilities, if one Plaintiff or detained person were to contract the virus, it is highly likely that it would spread to all Plaintiffs, subjecting them to the serious harm this illness would cause. See Keller Decl., ¶ 13. Judges Nathan and Torres in the Southern District of New York
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readily found irreparable harm for groups of civil immigration detainees, and for similar reasons, so should this Court.
Thus, the imminent infection, illness, and death that Plaintiffs face constitutes irreparable harm that this Court can help prevent.
II. Plaintiffs are likely to succeed on the merits of their claims. Immigrant detainees, whether or not they have prior criminal convictions, are
unquestionably civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The Due Process Clause of the Fifth Amendment, which provides significantly greater protection than the Eighth Amendment’s ban on cruel and unusual punishment, safeguards the rights of civil detainees while in custody. However, even the Eighth Amendment imposes on the Government an affirmative duty to provide conditions of reasonable health and safety to those in its custody:
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment[.] DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). Conditions that pose an unreasonable risk of imminent harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even if that harm has not yet come to pass. Thus, prison authorities cannot “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Helling, 509 U.S. at 33. For example, the Supreme Court has held that inmates cannot be comingled with others experiencing illness such as hepatitis or venereal disease. Hutto v. Finney, 437 U.S. 678, 682 (1978). An
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Eighth Amendment violation is established even though the plaintiff cannot yet “prove that he is currently suffering serious medical problems caused by” the exposure. Helling, 509 U.S. at 32.
While Plaintiffs would clearly succeed on a claim under the Eighth Amendment, the Due Process Clause of the Fifth Amendment provides even greater protection to civil immigrant detainees. While the Eighth Amendment prohibits punishment that is “cruel and unusual,” civil detention and the Fifth Amendment’s due process protections prohibit “punishment.” Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). Civil detainees are entitled to “more considerate treatment” than their criminal counterparts. Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). And while convicted persons must show “deliberate indifference” on the part of prison officials to establish a violation of the Eighth Amendment, Farmer v. Brennan, 511 U.S. 825, 828 (1994), there is no such requirement for civil detainees challenging their conditions of confinement. If placing an inmate in a situation creating an elevated risk of potentially lethal infection constitutes “cruel and unusual punishment” in violation of the Eighth Amendment – as was found in Hutto – placing civil immigration detainees in life-threatening conditions with an imminent risk of lethal COVID-19 infection amounts to a clear violation of the Fifth Amendment. Plaintiffs are precisely in this untenable and unconstitutional position.
In a decision issued today in Basank v. Decker, the Court stated well the due process analysis:
Immigration detainees can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (“Deliberate indifference . . . can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the
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Case 1:20-cv-10617-WGY Document 12 Filed 03/27/20 Page 20 of 24
defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” (internal quotation marks, citation, and alterations omitted)). The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious. It can no longer be denied that Petitioners, who suffer from underlying illnesses, are caught in the midst of a rapidly-unfolding public health crisis. The Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where authorities “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Basank, slip op., at 11-12 (footnote omitted).
Alarmingly, Defendants’ guards have reported to work with coronavirus symptoms.
Neves Decl., ¶ 12. Just two days ago, in the midst of the public health crisis and contagion, a
new immigration detainee was brought into the facility. Id. at ¶ 14. The new detainee “got very
sick. He was very sick all night, and [Defendants] took him out.” Id. Even after this illness and
sickness, Plaintiffs “have not received any protection. No sanitizer, disinfectant or antiseptic.”
Id., ¶ 15. In fact, there are no sanitation or decontamination crews, the cleaning is done by
inmates. Savino Decl., ¶ 10 (“The standards of sanitation are very poor, and I am forced to touch
things that are potentially contaminated by diseases, including tables, chairs, dishes, and
cutlery.”). Plaintiffs cannot wash their hands frequently with soap. They cannot engage in social
distancing – maintaining a distance of six feet from other persons – because the Bristol County
Immigration Detention Facilities “do not provide [ ] the space for that.” Id., ¶ 11. Plaintiffs must
sleep merely feet apart from other individuals in detention, who have not been tested for
COVID-19, and may even be exhibiting symptoms. Plaintiffs cannot engage in the preventative
measures that those outside of detention can undertake to thoroughly protect themselves from
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coming into contact with the virus, nor can they control whom they come in to contact with on a daily basis, since guards, contractors, and vendors regularly enter the facility, Keller Decl., ¶ 14, and other detained individuals are transported between immigration detention facilities regularly. Id. ¶ 11.
Under these circumstances, the question is not if the unconstitutionally dangerous conditions in the Bristol County Immigration Detention Facilities will lead to the spread of COVID-19, but when, how quickly, and how many will die. Plaintiffs are literally being held in tinderboxes waiting to be ignited. Defendants know and should know that Plaintiffs and members of the putative class are at grave peril and risk of death due to their confinement in close quarters and without adequate space to distance themselves from each other, not to mention the arrival of new admissions and the lack of adequate soap, toilet paper, and other necessities of virus-preventing hygiene. Since exposure to lethal COVID-19 infection is imminent – and clearly banned by the Fifth Amendment – Plaintiffs are highly likely to succeed on the merits of their claim.
III. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’ Favor. Both the balance of equities and the public interest heavily favor the Plaintiffs. In normal
times, crowding and close quarters, the sharing of toilets, sinks, and showers, and communal food preparation and service may be considered uncomfortable. However, these conditions present a deadly threat to Plaintiffs lights in light of COVID-19. This threat is compounded daily, as guards come through the facility after being in contact with outside communities, and as other detainees are transferred in to Bristol County Immigration Detention Facilities. The threat and exceptional risk COVID-19 poses to Plaintiffs vastly outweighs any interest Defendants may have in maintaining Plaintiffs’ detention.
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Since immigration proceedings are civil and non-punitive, “[t]here is no sufficiently strong special justification . . . for indefinite civil detention.” Zadvydas, 533 U.S. at 690. In fact, Immigration and Customs Enforcement (“ICE”) has significant discretion to release immigration detainees, see 8 U.S.C. § 1226(a), and has a long-standing practice of releasing for humanitarian reasons even those whose detention has been mandated under particular immigration detention statutes, see 8 U.S.C. § 1182(d)(5); § 1225(b); § 1226(c). ICE regularly uses alternatives to detention to maintain custody and control over non-citizens in immigration proceedings, such as supervised release, electronic ankle monitors, home confinement, and telephonic monitoring. Since Defendants can and have routinely released immigration detainees for humanitarian reasons, they cannot object to the reasonableness of such relief under the life-threatening conditions in the Bristol County Immigration Detention Facilities.
CONCLUSION Plaintiffs’ motion for a temporary restraining order should be granted.

March 27, 2020

Respectfully Submitted,
/s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319)
Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0608
osellstrom@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern*
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Case 1:20-cv-10617-WGY Document 12 Filed 03/27/20 Page 23 of 24 Alden Pinkham, Law Student Intern* B. Rey, Law Student Intern* Megan Yan, Law Student Intern* Reena Parikh† Michael Wishnie (BBO# 568654)
Jerome N. Frank Legal Services Organization P.O. Box 209090
New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
† Motion for admission pro hace vice forthcoming.
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Case 1:20-cv-10617-WGY Document 12 Filed 03/27/20 Page 24 of 24 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as nonregistered participants.
/s/ Oren M. Sellstrom
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Case 1:20-cv-10617-WGY Document 12-1 Filed 03/27/20 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Maria Alejandra Celimen Savino, et. al., Petitioners-Plaintiffs,
v. THOMAS HODGSON, et. al.,
Respondents-Defendants.

Civil Action No. 1:20-cv-10617-PBS

DECLARATION OF ALLEN S. KELLER, M.D.
I, Allen S. Keller, M.D., hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge.
RELEVANT BACKGROUND AND QUALIFICATIONS
1. I am an Associate Professor at New York University School of Medicine (NYUSoM) in the Departments of Medicine and Population Health, and a Medicine Attending Physician at Bellevue Hospital in New York City. In 1995, I co-founded Bellevue/NYU Program for Survivors of Torture (PSOT) in New York City and from 1995-December 2018 served as PSOT’s Director. I am co-founder and Director of the NYU Center for Health and Human Rights (CHHR). I have over 25 years of experience evaluating and treating vulnerable populations including asylum seekers and victims of severe trauma such as torture.
2. I have over 25 years of experience evaluating prison conditions. From 2009 to 2016, I CoChair of the Immigration Detention Health Advisory Group for the U.S. Department of Homeland Security Immigration and Customs Enforcement NGO working group. In this role I also was part of several delegations visiting ICE detention facilities throughout the United States. I continue to conduct research on the conditions of detention and related health consequences. I am the author, coauthor and editor of nearly 100 scholarly publications on the evaluation and treatment of victims of trauma/human rights abuses; and prison conditions, including the health consequences of immigration detention.1 To date, I have visited over 20 immigration detention facilities throughout the United States.
3. I have served as a medical expert on various investigations of immigration detention facilities. In 2004, I was appointed as an expert by the U.S. Commission on International Religious Freedom (USCIRF) for their congressionally mandated study on the expedited removal process for asylum seekers, which examined all aspects of the process including
1 See e.g., Granski, Megan; Keller, Allen; Venters, Homer, Death Rates among Detained Immigrants in the United States. International journal of environmental research & public health. 2015 Nov 12; 12(11):14414-14419.
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immigration detention.2 In 2017, I served as a medical expert for a review conducted by Human Rights Watch on medical care and deaths of immigrants in detention entitled “Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention.”3
4. In preparing this affidavit, I reviewed the following materials: • Letters by ICE Detainees at Bristol County House of Correction; • ICE’s National Detention Standards (Revised 2019); • ICE Guidance on COVID-194; • ICE’s Enforcement and Removal Operations, National Detainee Handbook; Custody Management (April 2016); • The President’s Coronavirus Guidelines for America.5 • Massachusetts Dept. of Health Coronavirus Infection Statistics
Dangerous Conditions of Confinement in Immigration Detention Related to COVID-19
5. It is my professional opinion that in the midst of the COVID-19 pandemic the conditions of confinement in immigration detention facilities such as Bristol County are unsafe and pose a danger to detained immigrants.
6. Immigration detention facilities, such as Bristol County, both in design and functioning, are typically comparable to maximum-security prisons. For example, immigration detention facilities are heavily guarded, secured with barbed wire and multiple security check points, including electronic bars. Detainees, who must wear jail uniforms, are constantly monitored by corrections officers. Immigration detainees are often subjected to restricted visitation and recreational time, restricted access to the law library, and the use of segregation for punitive reasons. Lockdowns are common, including when head counts are conducted. Bristol County House of Correction is well-known for the Sheriff there taking pride in “tough” conditions in his jail.
7. Detained immigrants are housed in small, confined bunk-like quarters commonly referred to as “pods.” They often sleep with many detainees in close quarters. In recent letters from ICE Detainees, which I reviewed, Detainees repeatedly raised concerns about overcrowded conditions at Bristol. Meals are served in cafeterias to a large number of detainees at a time. Recreation typically occurs in central courtyards with large numbers of immigrant detainees at any given time.
8. These immigration detention practices occur in enclosed, prison-like facilities putting detainees in close contact around the clock. “Social Distancing COVID-19 Guidelines,” as per the CDC and the White House COVID-19, cannot be effectively and safely
2 Report on Asylum Seekers in Expedited Removal, available at https://www.uscirf.gov/reports-briefs/special- reports/report-asylumseekers-in-expedited-removal (accessed Mar. 23, 2020). 3 Available at https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard-medical-care- us-immigrationdetention (accessed Mar. 23, 2020). 4 Available at https://www.ice.gov/covid19 (accessed Mar. 23, 2020). 5 See https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf (accessed Mar. 23, 2020).
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implemented in immigration detention.
9. My review of allegations included in the letters submitted by immigration detainees at the Bristol County House of Corrections and reports regarding the facility leads me to conclude that the conditions at that facility are substantially similar to those of other immigration detention facilities I have visited and inspected.6
10. As such, the risk of COVID-19 infection and spread in immigration detention facilities, including Bristol County, is extremely high. Massachusetts Dept. of Health statistics about Coronavirus infections make this clear. On March 11, 2020, there were no confirmed Coronavirus infections in Bristol County and a total of 41 confirmed cases throughout the state. As of March 26, 2020 (2 weeks and 1 day later) there are 90 confirmed Coronavirus cases in Bristol County and 2,417 throughout the state. A significant number of individuals infected with the Coronavirus require admission to an intensive care unit. The total number of ICU beds in Bristol County is 96. Given the rapid increase of Coronavirus infections in the county, there is a substantial risk that the county will have inadequate ICU beds to care for all in need.
11. Furthermore, the routine practice of transferring immigrant detainees from one facility to another, and adding new prisoners each day throughout the nationwide immigration detention network, makes the likelihood of COVID-19 spread and infection far more likely, including at Bristol County. In a recent letter, Bristol County immigrant detainees noted that a new detainee was placed in an already overcrowded bunk before he was medically screened. Given such conditions and practices, one would be hard-pressed to think of a more effective means for the spread of COVID-19 infection than immigration detention.
12. The recent clustering of Coronavirus cases following a Biogen Employee meeting held in late February 2020 in Boston, which is attributed at least in part for the rapid rise of cases in Boston, is a sobering example of how a cluster of cases can rapidly multiply.
13. Plans for separating suspected COVID-19 exposed or infected individuals within a given facility or by transferring to specialized quarantine facilities is neither effective nor feasible as a response to the threat of infection or infectious spread within a detention facility. As per CDC guidelines, when individuals become symptomatic and considered “at risk” of being infected with/contagious to others for COVID-19, they are supposed to self-isolate, not isolate within groups. This prevents spread of COVID-19 from infected patients to those who are not infected, despite having similar symptoms. Putting both groups together, risks infecting the uninfected, symptomatic individuals. In other words, for individuals with symptoms who did not have COVID-19 before being placed in group isolation, many will likely contract COVID by being in contact with COVID infected patients.
14. This is exacerbated by substantial and increasing limitations on access to testing, even for those who have symptoms of COVID-19, because of a major shortage of testing materials. It would be unlikely that in these immigration detention facilities, all who are symptomatic
6 See e.g., WGBH Boston, Why is the suicide rate in Bristol County jails so high?, May 8, 2017 https://www.wgbh.org/news/2017/05/08/news/why-suicide-rate-bristol-county-jails-so-high; The Sun Chronicle, Jail Tales: A glimpse at life inside, April 12, 2019, https://www.thesunchronicle.com/news/local_news/jail-tales-a-glimpse-at-lifeinside/article_cbe6a01c-36c3-5c8a-9b85-d3cdeb98d6f6.html.
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could be tested prior to any form of group isolation.
15. Immigration detention staff, as well as contractors and vendors, are at risk of unknowingly spreading COVID-19 infection that was acquired in the community, given the daily back and forth routines of staff, contractors, and vendors, and the lack of available tests. In letters from Bristol County immigrant detainees, they raised concerns about guards who had to leave work because they had fevers.
16. All of the above risks of COVID-19 infection are further increased given the substantial period when individuals may be asymptomatic, but still shedding the virus and contagious.
17. It is my professional opinion that health care provided in immigration detention facilities such as Bristol County under normal conditions is often unsafe, and there are serious inadequacies in hygiene and sanitation. This conclusion is supported by numerous governmental,7 non- governmental,8 and investigative reports over the past decade which have found evidence of substandard medical care in immigration detention facilities, deficiencies in hygiene and sanitation, and a lack of oversight and accountability.
18. For example, The U.S. Government Accountability Office in 2016 reported that ICE lacked the tools to monitor the medical care in detention facilities. Human Rights Watch, in a 2017 report, documented deaths in detention resulting at least in part from substandard care. The DHS Office of the Inspector General has documented unclean and unsanitary detention facilities which do not meet ICE standards. In its 2019 review, the California Department of Justice found that, across the immigration detention facilities in the state, there were failures in medical record- keeping, “nurses practicing outside their legal scope of practice, superficial medical examinations, delayed or inadequate medical care, inadequate mental health staffing and services, and unsafe suicide watch and disciplinary
7 California Department of Justice, “Immigration Detention in California,” Feb. 2019, https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/immigration-detention-2019.pdf (accessed May 21, 2020); DHS Office of the Inspector General, “Concerns About ICE Detainee Treatment and Care at Four Detention Facilities,” June 3, 2019, https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun19.pdf (accessed May 21, 2020); US Government Accountability Office, “Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care,” February 2016, http://gao.gov/products/GAO- 16-231. http://www.gao.gov/assets/680/675484.pdf (accessed May 21, 2020); US Department of Homeland Security, Office of Inspector General, “Management Alert on Issues Requiring Immediate Action on Theo Lacy Facility in Orange, California,” March 6, 2017, https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG17-43- MA-030617.pdf (accessed March 21, 2020).
8 Human Rights Watch, “Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention,” May 2017, https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard- medical-care-us-immigration-detention (accessed May 20, 2020); Human Rights Watch, “Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention,” June 2018, https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf (accessed May 20, 2020); New York Lawyers for the Public Interest, “Health in Immigration Detention,” February 2016, http://www.nylpi.org/wp- content/uploads/2017/02/HJ-Health-in-Immigration-Detention-Report_2017.pdf (accessed May 20, 2020); Southern Poverty Law Center, “Shadow Prisons: Immigrant Detention in the South,” November 2016, https://www.splcenter.org/news/2016/11/21/new-splc-report-uncovers-abuse-and-neglect-immigrant-detention- centers-south (accessed May 20, 2020); American Civil Liberties Union, Detention Watch Network, and National Immigrant Justice Center, “Fatal Neglect: How ICE Ignores Deaths in Detention,” February 2016, https://www.aclu.org/report/fatal-neglect-how-ice-ignores-deathdetention (accessed May 21, 2020).
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isolation (solitary confinement) practices.”
19. In numerous ICE facilities, the medical care is provided largely by low-level medical professionals unqualified or underqualified for the care they are responsible to provide. This may include licensed vocational nurses (or licensed practical nurses), certified medical assistants, and registered nurses, often with very limited experience. Many of these health care professionals are asked to make decisions that are beyond their areas of expertise or skill level. There is also typically high turnover among health professionals in immigration detention facilities.
20. Access to healthcare for chronic conditions including HIV, hypertension and other illnesses can be challenging in immigration detention facilities including Bristol County. This in part is because the jail-like facilities where immigrants are held are intended for short-term rather than prolonged detention. As a result, they are often geared to providing temporary, short-term acute care rather than longer-term care and management of chronic health disorders. Thus, health conditions that may have been well-controlled outside of detention, such as diabetes and hypertension, are likely not only to be exacerbated by detention, but also to be inadequately treated. Facilities may have inadequate health staff and difficulty recruiting local health providers to provide care for their detainees.
21. The Public Health Service through the ICE Health Service Corps (IHSC) has some role governing the health care provided at detention centers even where it is not the health care provider. It is my professional opinion, however, where IHSC is not providing direct health care, as is the case in Bristol County House of Correction, there is typically some discontinuity of care and insufficient oversight of the work of private health care providers.
22. It is my professional opinion that IHSC also lacks the resources to monitor the quality of health care delivered to ICE detainees at any facility. IHSC lacks the appropriate clinical, non-clinical and monitoring staff to both provide and oversee the health care of immigration detainees. Instead, ICE often relies on contracts with non-governmental forprofit vendors to conduct formal monitoring, and this has been inadequate.
23. ICE has established national detention standards which govern the facilities the agency operates.9 However, for its county contractors and private detention providers, ICE has rarely held detention contractors accountable when they fail to meet the performance standards, even where their failures resulted in severe harm to detainees.10
24. The healthcare capacity in immigration detention facilities will be easily overwhelmed by the COVID-19 pandemic. Furthermore, many ICE detention facilities are located in remote, isolated areas, with limited health system capacity as well, which will easily be overwhelmed.
Vulnerability of Plaintiffs to Severe Effects of COVID-19
9 ICE detention center contracts establish the governing standards: the 2000 National Detention Standards (NDS) or 2008 and 2011 Performance Based National Detention Standards. 10 See DHS Office of the Inspector General, “ICE Does Not Fully Use Contracting Tools To Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards,” Jan. 29, 2019, https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf (accessed March 21, 2020).
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25. People over the age of 50 years old and people with underlying medical conditions are at greater risk of harm from COVID-19 and developing more serious illnesses and dying should they become infected with coronavirus. Underlying medical conditions which increase the risk of harm from COVID-19 infection include individuals who are immunosuppressed or HIV+, or who have hypertension, diabetes, coronary artery disease, chronic pulmonary conditions including Chronic Obstructive Pulmonary Disease (COPD) and asthma.11
26. Individuals in ICE custody at the Bristol County House of Corrections are at risk of harm from COVID-19. The CDC reported that 38% of individuals that were hospitalized between February 12 and March 16 as a result of complications arising from COVID-19 were between the ages of 20 and 54.12
27. New information regarding COVID-19 risk factors is coming out daily. Other individual plaintiffs not named here may have conditions that predispose them to complications from COVID-19, but are not yet identified by the medical literature. For example, the CDC published a new list on March 22, 2020 which expanded the previously identified groups of individuals vulnerable to the virus.
28. In addition, individuals who are “immunocompromised” are at high risk of severe illness, and this could include a large number of individuals, depending on the medication they are taking, their past drug/alcohol abuse,13 and other medical conditions. My conclusions above rest on currently available information, and do not discount the possibility that other factors may increase the severity of COVID-19.
29. For instance, as a result of profound stress and helplessness, immigrant detainees are at risk of having suppressed immune systems putting them at higher risk than the general population of contracting and potentially having more serious infections. Stress and its link to immunosuppression are well documented in the medical literature.14
Harmful Psychological Impact of COVID-19 on Immigrant Detainees
30. It is my professional opinion that physical and mental health and well-being of detained immigrants, independent of age or underlying conditions, is worsened and severely harmed by continued immigration detention during the COVID-19 pandemic. All immigrant detainees are at high risk of developing severe, disabling psychological symptoms and distress as a result of their continued immigration detention during the COVID-19 pandemic.
11 Coronavirus-19. People who are at higher risk for severe illness. Centers for Disease Control, National Center for Immunization and Respiratory Diseases. March 22, 2020 12 Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020, March 26, 2020, https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm 13 https://www.ncbi.nlm.nih.gov/pubmed/19630706. 14 Glaser R and Kiecolt-Glaser JK. 2005. Stress-induced immune dysfunction: implications for health. Nat Rev Immunol 5:
243-251; Segerstrom SC and Miller GE. 2004. Psychological stress and the human immune system: a meta-analytic study of 30 years of inquiry. Psychol Bull 130: 601-630; Johnson JD, Campisi J, Sharkey CM, Kennedy SL, Nickerson M,
Greenwood BN and Fleshner M. 2005. Catecholamines mediate stress-induced increases in peripheral and central inflammatory cytokines. Neuroscience 135: 1295-1307.
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31. Based on my over 20 years of evaluating and examining the impact of immigration on psychological symptoms, the vast majority of immigrant detainees suffer from psychological symptoms, including depression and anxiety, caused by their immigration detention. These individuals already suffering from psychological symptoms related to their immigration detention will likely experience substantial worsening of these symptoms in the context of a devastating pandemic. Furthermore, it is likely that even those immigrant detainees who did not have psychological symptoms before Coronavirus will develop such symptoms as a result of profound fear and helplessness. It is worth noting, that prior reports have documented that Bristol County Jail even before the Coronavirus infection has had an unusual high number of suicides compared to other county jails in the state.
32. Individuals with chronic medical conditions are at a particularly high risk of developing (if they did not have previously) significant symptoms of psychological distress, including anxiety, sleep disorders and depression. It is likely and predictable that such individuals with chronic health conditions are appropriately frightened of increased risk of harm by remaining in detention, which will, in turn, result in symptoms of anxiety and depression.
33. It is my professional opinion that individuals with underlying mental health conditions are at a high risk of harm from coronavirus. Individuals suffering from mental health conditions including depression, anxiety, schizophrenia and posttraumatic stress disorder (PTSD) are at particularly high risk of worsening of their symptoms as a result of being detained amid the coronavirus pandemic. Such exacerbation of psychological symptoms can result in severe harm. For example, individuals with depression are at increased risk of suicidality.
34. It is my professional opinion that as a result of the COVID-19 pandemic, immigration detention facilities are unsafe environments for immigrant detainees and continued detention in these facilities poses an immediate risk and danger to their health and wellbeing and to the community.
Date: March 26, 2020
Allen S. Keller, M.D.
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Case 1:20-cv-10617-WGY Document 12-1 Filed 03/27/20 Page 8 of 8 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
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Case 1:20-cv-10617-WGY Document 12-2 Filed 03/27/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Maria Alejandra Celimen Savino, et. al., Petitioners-Plaintiffs,
v. THOMAS HODGSON, et. al., Respondents-Defendants.

Civil Action No. 1:20-cv-10617-PBS

DECLARATION OF GREGG GONSALVES
I, GREGG S. GONSALVES, upon my personal knowledge, and in accordance with 28 U.S.C. § 1746, declare as follows:
1. I am an epidemiologist at the Yale School of Medicine and School of Public Health. I have worked at the schools of medicine and public health since 2017. Attached as Exhibit A is my CV.
2. COVID-19 is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), a virus closely related to the SARS virus. In its least serious form, COVID-19 can cause illness including fever, cough, and shortness of breath. However, for individuals who become more seriously ill, a common complication is bilateral interstitial pneumonia, which causes partial or total collapse of the lung alveoli, making it difficult or impossible for patients to breathe. Thousands of patients have required hospital-grade respirators, and COVID-19 can progress from a fever to life-threatening pneumonia with what are known as “ground-glass opacities,” a lung abnormality that inhibits breathing.
3. In about 16% of cases of COVID-19, illness is severe including pneumonia with respiratory failure, septic shock, multi organ failure, and even death.
4. Certain populations of people are at particular risk of contracting severe cases of COVID19. People over the age of fifty are at higher risk, with those over seventy at serious risk. As the Center for Disease Control and Prevention has advised, certain medical conditions increase the risk of serious COVID-19 for people of any age. These medical conditions
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include: those with lung disease, heart disease, diabetes, blood disorders, chronic liver or kidney disease, inherited metabolic disorders, developmental delays, those who are immunocompromised (such as from cancer, HIV, autoimmune diseases), those who have survived strokes, and those who are pregnant.1
5. There is no vaccine against COVID-19 and there is no known cure. No one is immune. The only known effective measures to prevent injuries or deaths resulting from COVID19 are to prevent individuals from being infected with the virus. In fact, young and healthy individuals may be more susceptible than originally thought. New data from the CDC show that up to one-fifth of infected people ages 20-44 have been hospitalized, including 2%-4% who required treatment in an intensive care unit.2
6. The number of people infected is growing exponentially. The death toll in, for instance, the nation of Italy, which began experiencing this epidemic about a week earlier than the first diagnosed American cases, rose by 30% overnight in the 24 hours between March 5, 2020 and March 6, 2020.3 On March 17, 2020, Italy reported 345 new coronavirus deaths in the previous 24 hours, an increase in the death toll of 16%.4 Experts predict similar rapid growth will soon occur in the United States. Without effective public health interventions, a COVID-19 response team at the Imperial College in the United Kingdom projected 2.2 million or more deaths in the United States.5
7. For all people, even in advanced countries with very effective health care systems, the case fatality rate of COVID-19 is about ten fold higher than that observed from a severe seasonal influenza. In the more vulnerable groups, both the need for care, including intensive care, and death is much higher than we observe from influenza infection. In the highest risk populations, the case fatality rate is about 15%. For high risk patients who do not die from COVID-19, a prolonged recovery is expected to be required, including the need for extensive rehabilitation for profound deconditioning, loss of digits, neurologic damage, and loss of respiratory capacity that can be expected from such a severe illness.
8. Based on data collected by the Centers for Disease Control and Prevention, World Health Organization, and National Center for Biotechnology Information on the speed at which
1 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): People Who May Be at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/highrisk-complications.html (last accessed Mar. 18, 2020). 2 Centers for Disease Control and Prevention, Severe Outcomes Among Patients with Coronavirus Disease 2019
(COVID-19) — United States, February 12–March 16, 2020 (Mar. 26, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w Sharon Begley, New analysis breaks down age-group risk for coronavirus — and shows millennials are not invincible (March 18, 2020) https://www.statnews.com/2020/03/18/coronavirus-new-age-analysis-of-risk-confirms-young-adults-not-invincible/ 3 Worldometer, Italy, https://www.worldometers.info/coronavirus/country/italy/ (last accessed Mar. 26, 2020). 4 Id.
5 Imperial College COVID-19 Response Team, Impact of non-pharmaceutical Interventions (NPIs) to reduce COVID-19 mortality and healthcare demand (Mar. 16, 2020), https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-CollegeCOVID19-NPI-modelling-16-03-2020.pdf.
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SARS-CoV-2 has spread since it is first known to have infected a human in November 2019, the virus is estimated to be twice as contagious as influenza.6 Unlike influenza, there are no known vaccines or antiviral medications to prevent or treat infection from COVID-19. Because the coronavirus that causes COVID-19 is passed through respiratory droplets and also appears to be able to survive on inanimate surfaces, it can be transmitted even when an infected person is no longer in the immediate vicinity. Data from China indicates that the average infected person passes the virus on to 2-3 other people at distances of 3-6 feet.7 Everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus.
9. The current estimated incubation period of COVID-19 is between 2 and 14 days, meaning that a patient who begins showing symptoms today may have been contagious for as long as two weeks prior. The time course of the disease once symptoms appear can be very rapid. A patient’s condition can seriously deteriorate in as little as five days (perhaps sooner) following initial detection of symptoms. The current estimated rate for life-threatening complications is approximately 20%, with a fatality rate estimated at between 1% and 5%. All of these risk assessment numbers, however, appear to be rising.
10. It is clear that, currently, the numbers of people diagnosed reflect only a portion of those likely infected; very few people have been tested, and many are asymptomatic, so they do not even know they should be tested. As a result, thousands of people are likely living day to day and carrying a potentially fatal disease that is easily transmitted—and no one is aware of it.
11. The Massachusetts (“MA”) Department of Public Health announced the first confirmed COVID-19 case in the state on February 1, 2020.8 As of March 26, the MA Department of Public Health has confirmed 2,417 cases of COVID-19 in the state.9 As of March 24, 2,l47 residents of Massachusetts were under state-imposed quarantine following exposure to COVID-19 in community-based settings.10 According to the MA Department of Public Health, 1,655 additional residents have completed monitoring after possible exposure from group settings.11 In the last few weeks, several entire nations have declared lockdowns, and cities and institutions across the United States are closing public events,
6 Brian Resnick & Christina Animashaun, Why Covid-19 is worse than the flu, in one chart, Vox (Mar. 18, 2020), https://www.vox.com/science-and-health/2020/3/18/21184992/coronavirus-covid-19-flucomparison-chart. 7 Knvul Sheikh, Derek Watkins, Jin Wu & Mika Gröndahl, How Bad Will the Coronavirus Outbreak Get? Here are 6 Key Factors, NEW YORK TIMES (Feb. 28, 2020), https://www.nytimes.com/interactive/2020/world/asia/china-coronavirus-contain.html. 8 Joe Dwinell, Lisa Kashinsky & Stefan Geller, UMass Boston student first confirmed case of coronavirus in Massachusetts, BOSTON HERALD (Feb. 1, 2020), https://www.bostonherald.com/2020/02/01/first-caseof-coronavirus-confirmed-in-massachusetts-dph/. 9 Massachusetts Department of Public Health, COVID-19 cases in Massachusetts (Mar. 26, 2020), https://www.mass.gov/doc/covid-19-cases-in-massachusetts-as-of-march-26-2020/download. 10 Massachusetts Department of Public Health, Massachusetts residents subject to COVID-19 quarantine, https://www.mass.gov/info-details/covid-19-cases-quarantine-and-monitoring#massachusetts-residentssubject-to-covid-19-quarantine- (last accessed Mar. 26, 2020). 11 Id.
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workplaces, and schools in order to curb spread of COVID-19 by limiting person-toperson transmission in group settings.
12. On March 10, 2020 Governor Charlie Baker of Massachusetts declared a state of emergency, announcing aggressive recommendations to curb the spread of COVID-19 and finding the importance of taking steps to address the potentially disastrous impacts of the disease on the health, safety, and security of the public.12 On March 13, 2020 President Donald J. Trump announced a national state of emergency in response to the disease’s outbreak.13 On March 15, 2020, Governor Baker closed schools for three weeks, banned on-premise consumption of food or drinks at bars and restaurants, and limiting all gatherings to 25 individuals.14 On March 23, 2020, Governor Baker issued an emergency order closing all nonessential businesses, prohibiting gatherings of more than ten people, and urging everyone to remain in their homes as much as possible and to “practice social distancing at all times. . . to limit the spread of this highly contagious and deadly virus.”15 On March 25, 2020, Governor Baker extended school closures until May 4.16
13. On March 11, 2020, the World Health Organization declared a global pandemic based on COVID-19. Citing “deep[] concern[] both by the alarming levels spread and severity, and by the alarming levels of inaction,” it called for countries to take “urgent and aggressive action.”17
14. As of March 26, 2020, according to the World Health Organization, over 462,684 people in over 200 countries and territories have been diagnosed with coronavirus and 20,834 people have died as a result.18 And as of March 26, according to the Center for Disease
12 Massachusetts Department of Public Health, COVID-19 State of Emergency, Exec. Order No. 591 (Mar. 10, 2020), https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency-torespond-to-covid-19. 13 President Donald Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/. 14 Massachusetts Department of Public Health, COVID-19 State of Emergency: Updates, Emergency Orders and Guidance, https://www.mass.gov/info-details/covid-19-state-of-emergency (last accessed Mar. 17, 2020). 15 Office of the Governor, Commonwealth of Massachusetts, Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More Than 10 People, https://www.mass.gov/doc/march-23-2020-essential-services-and-revisedgatherings-order/download (last accessed Mar. 26, 2020). 16 CBS Boston, Coronavirus Closures: Gov. Baker Orders All Mass. Schools Stay Closed Until May 4 (Mar. 25, 2020), https://boston.cbslocal.com/2020/03/25/coronavirus-massachusetts-schools-closed/. 17 World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020. 18 World Health Organization, Coronavirus disease 2019: Situation Report – 66 (Mar. 26, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200326-sitrep-66-covid19.pdf?sfvrsn=81b94e61_2.
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Control (CDC), 68,440 people have been diagnosed in the United States, with 994 deaths confirmed. 50 states, the District of Columbia, Puerto Rico, Guam, and the US Virgin Islands have confirmed positive tests.19
15. The virus is thought to be transmitted mainly between people who are in close contact with one another (within about 6 feet) through respiratory droplets produced when an infected person coughs or sneezes. It also may be possible that a person can get COVID19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. What doctors and experts are calling “community spread” is at the root, and “containment” and “social distancing” are being enforced as the best methods of prevention. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill. Social distancing means, in essence, isolating oneself from other people as much as possible: working from home, avoiding travel, avoiding crowds and contact with others, not touching common surfaces, and generally staying at least 6-12 feet from other people as much as possible.
16. In light of COVID-19, individuals in detention facilities are at risk of serious harm. Detention facilities are designed to maximize control of the incarcerated population, not to minimize disease transmission or to efficiently deliver health care. These facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Detention facilities have even greater risk of infectious spread than other enclosed environments because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. During the H1N1 influenza (“Swine Flu”) epidemic in 2009, jails and prisons were sites of severe outbreaks of viral infection.20
17. People incarcerated in detention facilities live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Spaces are poorly ventilated, which promotes highly efficient spread of diseases through droplets.
18. Many detention facilities lack the supplies and staff needed to perform cleaning procedures such as regular disinfection of high-touch surfaces, which is essential to preventing virus spread. Facilities often do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced
19 Centers for Disease Control and Prevention, COVID-19: U.S. at a Glance, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcasesin-us.html (last accessed Mar. 26, 2020). 20 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, PRISON LEGAL NEWS (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-inprisons-and-jails-but-deaths-are-few/.
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and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings.
19. Many detention facilities lack the medical care infrastructure necessary to treat infected individuals and prevent the exponential spread of infection. For example, many detention facilities use practical nurses who practice beyond the scope of their licenses; have parttime physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals. Detention facilities are also illequipped to provide sufficient personal protective equipment, such as gloves, masks, gowns, and eye-shields, for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
20. The medical facilities at jails and prisons are almost never sufficiently equipped to handle widespread outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. As an outbreak spreads, medical personnel become sick and do not show up to work. Facilities can become dangerously understaffed with healthcare providers.
21. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
22. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions may not be able to receive the care they need. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
23. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, can result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
24. As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
25. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities
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in Maine, resulting in two inmate deaths.21 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the swine flu outbreak in 2009, jails and prisons experienced a disproportionately high number of cases.22 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
26. Due to the crowded conditions and scarcity of sanitary and medical resources, transmission of infectious diseases in jails and prisons, including the Bristol County House of Corrections, is incredibly common. These risks are magnified for those diseases, like COVID-19, that are transmitted by respiratory droplets. An outbreak of COVID-19 in detention facilities would be devastating.
27. The experiences of other nations fighting COVID-19 outbreaks demonstrate the particular risk of COVID-19 transmission present in detention facility settings. Prisons in China reported more than 500 cases of COVID-19 spread across four facilities, and these cases affected both correctional officers and incarcerated people.23 Secretary of State Mike Pompeo has called for Iran to release U.S. citizens detained there because of “deeply troubling” “[r]eports that COVID-19 has spread to Iranian prisons,” noting that “[t]heir detention amid increasingly deteriorating conditions defies basic human decency.”24
28. Of the 2,417 confirmed cases in the state of Massachusetts, 90 of those cases have been in Bristol County.25 It is only a matter of time before we become aware of COVID-19 cases in the Massachusetts detention system, including Bristol County House of Corrections, in which inmates live in close quarters, with subpar infection control measures in place, and whose population represents some of the most vulnerable. On March 24, 2020, ICE announced that a detainee in Bergen County Jail in New Jersey had
21 Influenza Outbreaks at Two Correctional Facilities – Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 22 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, PRISON LEGAL NEWS (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-inprisons-and-jails-but-deaths-are-few/. 23 Evelyn Cheng & Huileng Tan, China says more than 500 cases of the new coronavirus stemmed from prisons, CNBC (Feb. 20, 2020), https://www.cnbc.com/2020/02/21/coronavirus-china-says-two-prisonsreported-nearly-250-cases.html. 24 Michael R. Pompeo, United States Calls for Humanitarian Release of All Wrongfully Detained Americans in Iran, U.S. Dep’t of State (Mar. 10, 2020), https://www.state.gov/united-states-calls-forhumanitarian-release-of-all-wrongfully-detained-americans-in-iran/. 25 Massachusetts Department of Public Health, COVID-19 cases in Massachusetts (Mar. 26, 2020), https://www.mass.gov/doc/covid-19-cases-in-massachusetts-as-of-march-26-2020/download.
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tested positive for COVID-19.26 COVID-19 has already entered the detention systems of several other states.27 In this setting, we can expect the spread of COVID-19 in a manner similar to that at the Life Care Center of Kirkland, Washington, at which over 50% of residents have tested positive for the virus and over 20% have died in the past month. Such an outbreak would further strain the community’s health care system.
29. COVID-19 threatens the well-being of detained individuals, the corrections staff who shuttle between detention facilities and outside communities, and members of those outside communities. Staff, visitors, contractors, and vendors who pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Strains on the medical systems of detention facilities have implications for the outside hospitals and emergency departments on which detention facilities already depend for intensive medical care services. Prison health is public health.
30. The only viable public health strategy available is risk mitigation. In my opinion, from an epidemiological perspective, the Court should immediately take the steps necessary to provide for the release of any detainees in Bristol County House of Corrections, absent extraordinary circumstances. Such steps are necessary for the safety of detained individuals and the broader community as we address the rapid global outbreak of COVID-19.
31. Releasing detainees has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, cleaning supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff such that they can continue to ensure the safety of detainees. The United Nations High Commissioner for Refugees, recognizing the serious public health risks posed by prisons and detention centers, has urged governments to release prisoners and detainees in order to protect their safety and as part of larger efforts to quell the spread of the virus.28
26News Release, U.S. Immigration and Customs Enforcement, ICE detainee tests positive for COVID-19 at Bergen County Jail (March 24, 2020) (https://www.ice.gov/news/releases/ice-detainee-tests-positivecovid-19-bergen-county-jail). 27 See, e.g., Rikers Inmate Tests Positive for Coronavirus, Spectrum News NY1 (Mar. 18, 2020), https://www.ny1.com/nyc/all-boroughs/coronavirus/2020/03/18/rikers-inmate--correction-officer-testpositive-for-coronavirus; Rikers officer infected with coronavirus, Fox 5 NY (Mar. 18, 2020), https://www.fox5ny.com/news/rikers-officer-infected-with-coronavirus; Mark Sundstrom, Inmate at Nassau County jail tests positive for coronavirus: officials, Pix 11 (Mar. 16, 2020), https://www.pix11.com/news/coronavirus/inmate-at-nassau-county-jail-long-island-tests-positive-forcoronavirus-officials.
28 Michelle Bachelet, UN High Commissioner for Refugees, Urgent action needed to prevent COVID-19 “rampaging through places of detention” (Mar. 25, 2020) (https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx).
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32. The public health crisis requires each and every one of us to re-evaluate how we conduct our lives and care for one another. Institutions responsible for the care and custody of vulnerable populations must take unique steps to “flatten the curve” and slow the spread of this virus. Incarcerating as few individuals as possible will help mitigate the harm from a COVID-19 outbreak.
33. Conditions related to COVID-19 are changing rapidly and may change between the time I execute this Declaration and when this matter appears before the Court.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief.

Date: March 26, 2020

Assistant Professor of Epidemiology (Microbial Diseases) Yale School of Public Health 350 George Street New Haven, CT 06511 gregg.gonsalves@yale.edu

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Case 1:20-cv-10617-WGY Document 12-2 Filed 03/27/20 Page 10 of 10 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as nonregistered participants. /s/ Oren M. Sellstrom
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Case 1:20-cv-10617-WGY Document 12-3 Filed 03/27/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Maria Alejandra Celimen Savino, et. al., Petitioners-Plaintiffs,
v. THOMAS HODGSON, et. al.,
Respondents-Defendants.

Civil Action No. 1:20-cv-10617-WGY

DECLARATION OF IRA ALKALAY
I, Ira Alkalay, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge.
1. I am a private attorney who practices in Massachusetts specializing in immigration law, criminal appeals, and post-conviction relief. I have multiple clients who are currently Immigration and Customs Enforcement (ICE) detainees at Bristol County House of Corrections (BCHOC).
2. I most recently visited clients at BCHOC on March 25, 2020. I also visited clients on March 20, 21, and 23. My clients are worried about exposure to COVID-19 inside the facility.
3. I currently have no-contact visits with my clients, so as not to risk carrying infection to them. I meet with my clients in the visitor’s bay where we sit in a glass-partitioned booth. From this vantage point I can see into one of the ICE detainee housing units, known as Unit B.
4. Up to 66 people can be housed in Unit B at one time. The beds are bunk beds located between one and three feet apart. Eating tables are clustered at one end of the room. The Unit contains a small area of space where detainees can walk around. Other than a few hours outside each day, the detainees spend all hours of the day inside Unit B, where they eat, sleep, and socialize. From my observation of the Unit, detainees do not have adequate space to practice social distancing, which requires keeping six feet apart.
5. My clients have informed me that they eat their meals off of plastic trays, which have been passed through three or four individuals before reaching a detainee for meals.
6. To the best of my knowledge, at least one corrections officer, who has been in physical contact with the outside community, is present on the Unit at all times.
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7. My clients have informed me that the Unit has access to six showers, of which four are currently operational. Additionally, they have access to four urinals, of which two are operational. My clients have told me that soap is watered down and inadequate for proper hygiene.
8. My clients and the other Unit B detainees are responsible for cleaning the unit. My clients have informed me that until the past few days, they were not allocated bleach, adequate scrub-brushes, or sufficient soap for this purpose. Despite this recent improvement, my clients do not believe they have the training or supplies necessarily to disinfect their living space to prevent spread of COVID-19.
9. On March 26, 2020, I spoke with two currents clients and an additional prospective client regarding a new detainee booked into Unit B. This new detainee is, based on my client’s description, in his late twenties The new detainee related that he was arrested on March 25 and placed in New Bedford District Court lockup in close proximity to a man wearing a mask who was obviously sick. The new detainee posted bail, was immediately picked up by ICE, and put straight into Unit B without screening for COVID-19. He was assigned a bunk next to a detainee who tests positive for tuberculosis. The new detainee spent the night coughing and vomiting without intervention from BCHOC officials. On the morning of March 26, he was taken to medical. This intake process and placement of an obviously ill and potentially exposed detainee demonstrates how Bristol and ICE put detainees at risk of outside infection.
10. I have a client who is being transferred from BCHOC to Strafford County Department of Corrections in New Hampshire overnight on March 26, 2020. This client was exposed to the ill detainee described in paragraph 9. This transfer could spread the illness, if it is COVID19, from BCHOC to ICE units at Strafford.
11. My clients have complained about inadequate medical attention at BCHOC. For example, I have a client who experiences breathing problems due to allergies and headaches due to hypertension. He has been detained for nine months at BCHOC. He has repeatedly needed medical attention, but tells me it takes days to a week to receive an appointment. It can take an additional week following the appointment to receive medications aside from his daily medications for hypertension and allergies, such as Tylenol for his severe headaches. His eyeglasses, when broken, were not replaced for approximately two months.
12. Based on my observations, my clients and their fellow ICE detainees are not resilient to infection. In addition to underlying health conditions, they are impacted by the stress of living in Unit B, sometimes for a year or more.
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Case 1:20-cv-10617-WGY Document 12-3 Filed 03/27/20 Page 3 of 4 13. In my estimation, 65-75% of ICE detainees in Unit B at any given time speak Spanish. I
speak Spanish, and almost all of my Spanish-speaking clients do not speak adequate English to understand facility instructions unless those instructions are provided in Spanish. Date: March 26, 2020 _________________ Ira Alkalay
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Case 1:20-cv-10617-WGY Document 12-3 Filed 03/27/20 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom

Case 1:20-cv-10617-WGY Document 12-4 Filed 03/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v.
THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617-WGY

Declaration of Carlos Menjivar-Rojas
I, Carlos Menjivar-Rojas, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge:
1. My name is Carlos Menjivar-Rojas and I am detained in Bristol County, Unit B.
2. I’m afraid of getting infected. I have asthma and I heard on the news that the coronavirus is much worse for people with asthma.
3. People have no space here and if anyone gets sick, it is a huge problem. I am one of 47 individuals detained in a very crowded room. We are always really close together. The beds, for example, are maybe 1 or 2 feet away from each other.
4. I also have anxiety and depression. Being here and being so afraid of the coronavirus has made my anxiety and depression much worse. Every day, I look at the news – the total number of deaths keeps rising; the total number of people being exposed keeps rising.
5. It gives me a lot of stress – all I’m thinking about every day is coronavirus. What if the numbers never stop going up? Where I am, people are right next to each other all day. We cannot distance from each other.
6. The conditions are nasty. The walls are dirty. There’s dust everywhere.
7. The bathroom is disgusting. There’s no toilet paper, no napkins in the bathroom. No one has been able to wipe any surfaces. The soap that we use is watered down. When the

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officers bring it out for us to wash our hands, we are pretty much just washing our hands with water.
8. We do not have any supplies to keep things clean here – no bleach, no disinfectant, nothing. I help out with sweeping and mopping before lunch and I help clean the bathroom, so I know the cleaning supplies. When you clean bathrooms, you are supposed to use bleach. But we don’t have that – just watered-down soap and hot water. What good is that for stopping germs?
9. Officers said that they’ll bring better chemicals to clean the bathrooms and the bunks, but I haven’t seen anything. Last week, they said they’d give us chemicals to clean the building, but nothing has changed.
10. None of the officers wear masks, gloves, or anything. There are a few officers that cough and we are worried that they have coronavirus. A few weeks ago, there were two officers who seemed sick and they got sent home, but only for a few days before they came back to work.
11. I worry because I have asthma. My asthma will be triggered very quickly.
12. Everyone here is talking about the coronavirus all the time. All of us are scared. Every time we see a new person, we worry about whether they have it. ICE keeps bringing people in from the streets. They just brought two new people in today. I don’t think the new people they brought in got checked for symptoms or were tested.
13. I feel like I’m being punished. I know the officers can make things better for us, and they say they will do it. But when will they start doing it? The officers will roll their eyes at us when we ask for things.
14. We live here, we have to live here. Officers and others can go home at the end of the day, so they don’t have to worry about the virus being around. We do.
15. I feel trapped. I feel like a dog caged in, like I’m in a kennel. If you could see this place from the inside, it would open your eyes to how serious the problem is. It’s like I’m being played; they play like us like we’re animals. We’re not animals, we’re human beings.
16. This declaration was read to me in English, and I swear it is true. I have authorized Megan Yan, a law student intern working on Savino v. Hodgson, to sign for me.
Date: March 27, 2020
/s/ Carlos Menjivar-Rojas Carlos Menjivar-Rojas

Case 1:20-cv-10617-WGY Document 12-4 Filed 03/27/20 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as nonregistered participants. /s/ Oren M. Sellstrom

Case 1:20-cv-10617-WGY Document 12-5 Filed 03/27/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617-WGY

Declaration of Cesar Francisco Vargas Vasquez
I, Cesar Francisco Vargas Vasquez, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge:
1. My name is Cesar Francisco Vargas Vasquez. I am currently detained at Bristol County in Unit B.
2. I am very scared of being infected with coronavirus and getting sick.
3. I have asthma and only one of my lungs works. I am worried about receiving medical care while detained. I have had past trouble seeing the doctor – I need an operation on my right hand, which is not working properly.
4. I was given a new inhaler for my asthma three weeks ago, but it is expired. The date on the spray is December 2019.
5. Because I have asthma, I am very worried that if I get sick, I will die.
6. It is only a matter of time before the disease spreads everywhere here.
7. There are 47 people in Unit B as of today. I am being held in the same room as all of them.
8. The room is roughly 3,500 square feet of open space and we sleep on bunk beds that are barely 3 feet apart from each other. My bed is too close to the others.
9. I am not able to engage in “social distancing.” For example, the dining room has plastic party tables which are set up inches from each other during meal times. All of us eat at the exact same time, so the dining room is always very crowded.
1

Case 1:20-cv-10617-WGY Document 12-5 Filed 03/27/20 Page 2 of 4
10. The bathroom stalls and showers are also very crowded. We do not have access to disinfectant or toilet paper.
11. The “soap” in the bathroom is not enough. It is mixed with water and will not be able to keep us safe from this disease. We need disinfectant to kill the germs.
12. The correctional officers said that they are stopping outside visits to keep us safe, but this cannot be true. We have not been moved and we are still kept in the same room for weeks with no separation or distance.
13. Meanwhile, ICE is bringing new individuals into the facility everyday, directly from the street.
14. Even though the jail is supposed to quarantine new individuals, they do not do so. They do not test them for the virus or check for symptoms.
15. Two nights ago, ICE brought a new individual—Ernesto—here. Yesterday, he began to throw up everywhere and was coughing very bad. We informed the correctional officer, who saw he was throwing up.
16. Officers came in with masks on and took him away, but I do not know where he went.
17. Even after this and other incidents, we have not received any protection. I have seen guards with flu-like symptoms like the coronavirus.
18. The correctional officers do not wear any protective gear. Yesterday, I saw the nurse giving medication without any gloves. We asked the nurse to put on gloves and she laughed at us.
19. Every time I see news about the coronavirus on the TV, I want to cry. I feel desperate and have not been sleeping. I am awake at 3 or 4AM in the morning and I try to sleep in the day to avoid watching the TV.
20. I began seeing a psychiatrist, but no pills will help me. The fear I feel is too strong.
21. I am very scared of getting sick and dying, especially because it is impossible to have proper hygiene in here. I want to be released so I can avoid infection.
22. Because ICE keeps bringing new people and because we are so close together, I believe everyone will get sick, including me.
2

Case 1:20-cv-10617-WGY Document 12-5 Filed 03/27/20 Page 3 of 4

23. Last week, one of the nurses said, “it’s a matter of time before you guys get it too. You will get it in less than a month.” On Sunday, one of the correctional officers said to us that we will all be sick soon.
24. All of the immigrants share my fear. Please get us out. We are being treated like dogs in here.
25. This declaration was read to me in English, and I swear it is true. I have authorized Megan Yan, a law student intern working on Savino v. Hodgson, to sign for me.

Date: March 27, 2020

/s/ Cesar Francisco Vargas Vasquez Cesar Francisco Vargas Vasquez

3

Case 1:20-cv-10617-WGY Document 12-5 Filed 03/27/20 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
4

Case 1:20-cv-10617-WGY Document 12-6 Filed 03/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617-WGY

Declaration of Cristina Ortiz Ortiz
I, Cristina Ortiz Ortiz, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge:
1. My name is Cristina Ortiz Ortiz. Francisco Ortiz Ortiz is my younger brother.
2. Francisco was apprehended by ICE officers in Stamford, CT on 25, 2020 from Stamford CT. He was taken to Bristol County House of Correction where he has been for about one month.
3. I had heard about Bristol County House of Correction from members of Unidad Latina en Accion (ULA) in New Haven because the conditions are so terrible. Several ULA members had been detained there and they said the conditions are deplorable.
4. When Francisco got to Bristol County, he told me that I need to deposit money in his account each day, because he does not have food. He is given only crackers, bread and coffee. After 5pm he is not given any food at all. Francisco is hungry a lot of the time. He and the others who are detained there do not have toilet paper or other supplies for personal cleaning. Francisco also suffers from a stomach hernia.
5. Since the beginning of the coronavirus pandemic, the only precautions that the facility has taken is to end visits by family members to individuals inside of the facility. However, the guards continue to enter the jail. That is not right, the guards can spread contagion inside of the jail. The family visits never had physical contact with detainees anyway. They always spoke through the phone or through glass.
1

Case 1:20-cv-10617-WGY Document 12-6 Filed 03/27/20 Page 2 of 3

6. Francisco suffers from respiratory problems. He has asthma. He also received surgery to insert a pacemaker into his body. He was held at the hospital for at least a week after that surgery. In recent weeks he has complained of a hernia. I worry that if he gets infected with coronavirus he will not come back alive.
7. The whole time that Francisco was inside Bristol, I felt powerless because I could not do anything for my brother. While I was eating three meals a day, he was going hungry. I felt powerless because he didn’t even have soap to wash his hands. While I was sleeping in my bed, he was inside with dozens of other people in bunks. It was painful. It hurt me.
8. This declaration was read to me in English, and I swear it is true to the best of my knowledge. I have authorized Megan Yan, a law student intern working on Savino v. Hodgson, to sign for me.

Date: March 27, 2020

/s/ Cristina Ortiz Ortiz Cristina Ortiz Ortiz

2

Case 1:20-cv-10617-WGY Document 12-6 Filed 03/27/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
3

Case 1:20-cv-10617-WGY Document 12-7 Filed 03/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617-WGY

Declaration of Yesenia Leyva
I, Yesenia Leyva, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge:
1. My name is Yesenia Leyva. Francisco Ortiz Ortiz is my partner.
2. Francisco was apprehended by ICE officers in Stamford, CT on 25, 2020 from Stamford CT. He was taken to Bristol County House of Correction where he has been for about one month.
I had heard about Bristol County House of Correction from members of Unidad Latina en Accion (ULA) in New Haven because the conditions are so terrible. Several ULA members had been detained there and they said the conditions are deplorable
3. Francisco told me three days ago that all of the prisoners are going to do a hunger strike to protest the conditions on the facility. None of the prisoners agree with unsafe conditions.
4. Francisco told me that two guards went to work sick last week. One of the guards was coughing a lot. The detention center sent both of the guards home.
5. When Francisco told me that the guards arrive sick at work. I got very worried. Yesterday we went to the protest outside of Bristol County and we saw posters that said, “This place will turn into a death camp.” I am very worried because if one person gets infected there is no way to protect everyone else. I am very worried.

1

Case 1:20-cv-10617-WGY Document 12-7 Filed 03/27/20 Page 2 of 3

6. This declaration was read to me in English, and I swear it is true to the best of my knowledge. I have authorized Aseem Mehta, a law student intern working on Savino v. Hodgson, to sign for me.

Date: March 27, 2020

/s/ Yesenia Leyva Yesenia Leyva

2

Case 1:20-cv-10617-WGY Document 12-7 Filed 03/27/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
3

Case 1:20-cv-10617-WGY Document 12-8 Filed 03/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

Maria Alejandra Celimen Savino, et al., )

)

Petitioners-Plaintiffs,

)

)

Case No. 1:20-cv-10617 WGY

v.

)

)

Thomas Hodgson, Bristol County Sheriff

)

in his Official Capacity, et al.,

)

)

Respondents-Defendants.

)

_______________________________________ )

DECLARATION OF JULIO CESAR MEDEIROS NEVES 1. My name is Julio Cesar Medeiros Neves. 2. I am detained at Bristol County in Unit B. 3. I suffer from debilitating depression and anxiety. 4. I am being held in the same room as 49 other people. 5. My bed is too close to other people. 6. I am not able to engage in “social distancing.” 7. The facility has not provided any guidance or information to help us protect ourselves from the
coronavirus. 8. I am afraid of getting infected and sick. 9. I am hearing alarming stories about people getting sick and dying. 10. I am worried I am going to get sick and die too, especially because I can’t follow proper
hygiene and sanitation in here. 11. I want to be released so I can avoid infection. 12. I have seen guards with flu-like symptoms like the coronavirus. 13. Fear of infection is triggering my anxiety and panic. 14. I have seen at least one detainee arrested and placed in here since the coronavirus outbreak
began. He got very sick. He was very sick all night, and they took him out. 1

Case 1:20-cv-10617-WGY Document 12-8 Filed 03/27/20 Page 2 of 3

15. Even after the incident with the sick person, we have not received any protection. No sanitizer, disinfectant or antiseptic.

16. My name has been included in letters about the coronavirus and the conditions in here, and I can confirm those details.

17. All immigration detainees share the same fear of infection.

18. I am very worried, and I am having trouble eating and sleeping.

19. Please get me out.

20. This declaration was read to me in Portuguese, and I swear it is true. I have authorized my attorney to sign for me.

Date: March 26, 2020

______________________ Julio Cesar Medeiros Neves

2

Case 1:20-cv-10617-WGY Document 12-8 Filed 03/27/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
3

Case 1:20-cv-10617-WGY Document 12-9 Filed 03/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

Maria Alejandra Celimen Savino, et al., )

)

Petitioners-Plaintiffs,

)

)

Case No. 1:20-cv-10617 WGY

v.

)

)

Thomas Hodgson, Bristol County Sheriff

)

in his Official Capacity, et al.,

)

)

Respondents-Defendants.

)

_______________________________________ )

DECLARATION OF MARIA ALEJANDRA CELIMEN SAVINO
1. My name is Maria Alejandra Celimen Savino.
2. I am detained at Bristol County.
3. I am in a unit called C. Carlos Carreiro Immigration Detention Center, Alley EB.
4. My unit has 8 cells of ICE detainees, 2 detainees are in each cell, and the total population varies often.
5. At this time, I am alone in my cell, which is 10 x 14 feet. I have been alone for the last two weeks, but this is unusual, there are usually 2 people per cell. At any time, someone can be brought to my cell.
6. The isolation cells are in front of this unit. That’s where people are brought when they are disciplined, and that happens often.
7. Upstairs, there are regular inmates, who are not detained by ICE. We share common areas, including the bathroom and a common room, where we eat.
8. The detention conditions are terrible. For the last week, we have not even had toilet paper, they ran out and they have not restocked for an entire week. I have to wipe using sanitary pads, which I must soak first.
9. I eat in the common area. We eat right next to each other, ICE detainees with the regular inmate population.
10. The cleaning inside this unit is done by inmates, there are no janitors coming from outside. The standards of sanitation are very poor, and I am forced to touch things that are potentially contaminated by diseases, including tables, chairs, dishes, and cutlery.
1

Case 1:20-cv-10617-WGY Document 12-9 Filed 03/27/20 Page 2 of 3

11. I am not able to engage in “social distancing,” the common areas do not provide for the space for that.
12. Just last week, a new inmate was added, she was not tested for Coronavirus, as far as I know. And there is a constant stream of new detainees. Also, there is people coming from outside regularly, including guards and other personnel. I don’t know if they are infected or if they have been tested.
13. I am afraid of getting infected and sick. I have suffered asthma since I am a child and in 2015, I had my last severe episode, which led to my hospitalization. If I were to be infected with Coronovirus, I will be at high risk.
14. I hear alarming stories about people getting sick and dying outside in the community. A former inmate, who was deported to Guatemala, called another inmate a couple of days ago, and said that inside this detention center there are people who tested positive for Coronavirus.
15. I am worried I am going to get sick and die too, especially because I can't follow proper hygiene and sanitation in here, and because of my medical condition.
16. I want to be released so I can avoid infection.
17. We are not provided any protection from getting infected.
18. All detainees share the same fear and risk of infection.
19. I am having trouble eating and sleeping. I am very worried.
20. There's no mental or emotional health support for me in here.
21. I am not detained for a crime, I should not be here. This is a place for criminal punishment, and I am here for my immigration status, not for a crime. I have been here for more than one year.
22. Please, release me from detention.
23. I fully authorize Lawyers for Civil Rights to use this declaration, which I narrated via phone, to file legal actions on my behalf.

Date: March 26, 2020

___________________________ Maria Alejandra Celimen Savino

2

Case 1:20-cv-10617-WGY Document 12-9 Filed 03/27/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
3

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 1 of 93

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al., Petitioners-Plaintiffs,
v. THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617 WGY

Declaration of Oren Sellstrom In Support of Application for Temporary Restraining Order
I, Oren Sellstrom, hereby declare under penalty of perjury, that the following is true and correct to the best of my knowledge: 1. My name is Oren Sellstrom. I am the Legal Director at Lawyers for Civil Rights. I
am counsel to Plaintiffs in this case. 2. I make this declaration from my personal knowledge and, if called upon to do so,
could and would competently testify to the matters set forth herein. 3. Attached hereto as Exhibit A is a true and correct copy of “What You Need to
Know About Coronavirus Disease 2019, COVID-19,” published by the Centers for Disease Control and Prevention (hereinafter, “CDC”) on March 20, 2020. 4. Attached hereto as Exhibit B is a true and correct copy of “Cases in U.S.” from the Coronavirus Disease 2019 (COVID-19) section of the CDC website, updated on March 26, 2020.

1

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 2 of 93
5. Attached hereto as Exhibit C is a true and correct copy of “Coronavirus disease 2019 (COVID-19) Situation Report—66” published by the World Health Organization (hereinafter, “WHO”) on March 26, 2020.
6. Attached hereto as Exhibit D is a true and correct copy of “Preparedness, prevention, and control of COVID-19 in prisons and other places of detention” published by the WHO Regional Office for Europe on March 15, 2020.
7. Attached hereto as Exhibit E is a true and correct copy of “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities” published by the CDC on March 26, 2020.
8. On March 27, 2020, at approximately 9:00 a.m., I emailed the Complaint in this matter to the following individuals: Attorney Robert Novack (robertnovack@bcso-ma.org); Assistant US Attorney Eve Piemonte (eve.piemonte@usdoj.gov); Assistant US Attorney Michael Sady (Michael.sady@usdoj.gov); and Assistant US Attorney Rayford Farquhar (Rayford.farquhar@usdoj.gov). Attorney Novack is known to the Plaintiffs’ legal team as an attorney who has in the past represented Defendant Hodgson and the Bristol County Sheriff’s Office. The AUSAs are known to the Plaintiffs’ legal team as attorneys who have represented the federal Defendants in habeas and other actions raising issues of immigration detention at Bristol County immigration detention facilities.
9. I attached the Complaint to the email. I requested that if any of the Defendants would like to comply voluntarily with Plaintiffs’ requested relief, or discuss the matter, that they should contact me by noon. I notified counsel that if we did not
2

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 3 of 93

hear back from them by then, Plaintiffs planned to move for a Temporary Restraining Order. I asked if they would accept service and asked if there were other counsel to whom Plaintiffs should be directing future correspondence about this matter. 10. At approximately 10:04 a.m. on March 27, 2020, Attorney Novack replied that the exhibits referenced in the complaint were not attached in the original email. At approximately 10:15 a.m., Plaintiffs’ legal team furnished those documents to Attorney Novack and the other counsel who had received the Complaint. Plaintiffs did not hear back further from Attorney Novack or any of the other counsel. 11. At approximately 9 PM on the same day (March 27, 2020), I sent an email to the counsel listed in paragraph 8 that advised them that Plaintiffs were preparing to file the TRO and motion for class certification and related papers, and attaching all of the documents that we planned to file. I again advised that if they, or Defendants, desired to discuss the matter further, Plaintiffs’ counsel would make themselves available.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

Date: March 27, 2020

/s/ Oren Sellstrom Oren Sellstrom

3

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 4 of 93 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants. /s/ Oren M. Sellstrom
4

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 5 of 93
Exhibit A

What you need to know about Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 6 of 93 coronavirus disease 2019 (COVID-19)

What is coronavirus disease 2019 (COVID-19)?
Coronavirus disease 2019 (COVID-19) is a respiratory illness that can spread from person to person. The virus that causes COVID-19 is a novel coronavirus that was first identified during an investigation into an outbreak in Wuhan, China.
Can people in the U.S. get COVID-19?
Yes. COVID-19 is spreading from person to person in parts of the United States. Risk of infection with COVID-19 is higher for people who are close contacts of someone known to have COVID-19, for example healthcare workers, or household members. Other people at higher risk for infection are those who live in or have recently been in an area with ongoing spread of COVID-19. Learn more about places with ongoing spread at https://www.cdc.gov/coronavirus/2019-ncov/about/ transmission.html#geographic.
Have there been cases of COVID-19 in the U.S.?
Yes. The first case of COVID-19 in the United States was reported on January 21, 2020. The current count of cases of COVID-19 in the United States is available on CDC’s webpage at https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html.
How does COVID-19 spread?
The virus that causes COVID-19 probably emerged from an animal source, but is now spreading from person to person. The virus is thought to spread mainly between people who are in close contact with one another (within about 6 feet) through respiratory droplets produced when an infected person coughs or sneezes. It also may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads. Learn what is known about the spread of newly emerged coronaviruses at https://www.cdc.gov/ coronavirus/2019-ncov/about/transmission.html.
What are the symptoms of COVID-19?
Patients with COVID-19 have had mild to severe respiratory illness with symptoms of • fever • cough • shortness of breath

What are severe complications from this virus?
Some patients have pneumonia in both lungs, multi-organ failure and in some cases death.
How can I help protect myself?
People can help protect themselves from respiratory illness with everyday preventive actions. ​ • Avoid close contact with people who are sick. • Avoid touching your eyes, nose, and mouth with
unwashed hands. • Wash your hands often with soap and water for at least 20
seconds. Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not available.
If you are sick, to keep from spreading respiratory illness to others, you should
• Stay home when you are sick. • Cover your cough or sneeze with a tissue, then throw the
tissue in the trash. • Clean and disinfect frequently touched objects
and surfaces.
What should I do if I recently traveled from an area with ongoing spread of COVID-19?
If you have traveled from an affected area, there may be restrictions on your movements for up to 2 weeks. If you develop symptoms during that period (fever, cough, trouble breathing), seek medical advice. Call the office of your health care provider before you go, and tell them about your travel and your symptoms. They will give you instructions on how to get care without exposing other people to your illness. While sick, avoid contact with people, don’t go out and delay any travel to reduce the possibility of spreading illness to others.
Is there a vaccine?
There is currently no vaccine to protect against COVID-19. The best way to prevent infection is to take everyday preventive actions, like avoiding close contact with people who are sick and washing your hands often.
Is there a treatment?
There is no specific antiviral treatment for COVID-19. People with COVID-19 can seek medical care to help relieve symptoms.

CS 314937-A 03/20/2020

cdc.gov/COVID19

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 7 of 93
Exhibit B

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 8 of 93
Coronavirus Disease 2019 (COVID-19)
Cases in U.S.
Updated March 26, 2020
This page will be updated regularly at noon Mondays through Fridays. Numbers close out at 4 p.m. the d before reporting.
CDC is responding to an outbreak of respiratory illness caused by a novel (new) coronavirus. The outbreak !rst starte Wuhan, China, but cases have been identi!ed in a growing number of other locations internationally, including the Un States. In addition to CDC, many public health laboratories are now testing for the virus that causes COVID-19.

COVID-19: U.S. at a Glance* Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 9 of 93
Total cases: 68,440 Total deaths: 994 Jurisdictions reporting cases: 54 (50 states, District of Columbia, Puerto Rico, Guam, and US Virgin Islands)
* Data include both con!rmed and presumptive positive cases of COVID-19 reported to CDC or tested at CDC since January 21, 202 with the exception of testing results for persons repatriated to the United States from Wuhan, China and Japan. State and local public health departments are now testing and publicly reporting their cases. In the event of a discrepancy between CDC cases an cases reported by state and local public health o"cials, data reported by states should be considered the most up to date.

Cases of COVID-19 Reported in the US, by Source of Exposure*†

Travel-related

636

Close contact Under investigation

1,074 66,730

Total cases

68,440

* Data include both con!rmed and presumptive positive cases of COVID-19 reported to CDC or tested at CDC since January 21, 202 with the exception of testing results for persons repatriated to the United States from Wuhan, China and Japan. State and local public health departments are now testing and publicly reporting their cases. In the event of a discrepancy between CDC cases an cases reported by state and local public health o"cials, data reported by states should be considered the most up to date.

† CDC is no longer reporting the number of persons under investigation (PUIs) that have been tested, as well as PUIs that have tested negative. Now that states are testing and reporting their own results, CDC’s numbers are not representative of all testing being done nationwide.

States Reporting CaseCsasoe 1f:20C-cOv-1V06I1D7-W-G1Y9DtoocumCenDt 12C-1*0 Filed 03/27/20 Page 10 of 93

Territories AS GU MH FM MP PW PR VI
States

Reported Cases
(last updated March 26, 2020)
None 6 to 50 51 to 100 101 to 500 501 to 1000 1001 to 5000 5001 or more

Reported Cases
(last updated March 26, 2020) None 6 to 50
* Data include both con!rmed and presumptive positive cases of COVID-19 reported to CDC or tested at CDC since January 21, 2020, with th exception of testing results for persons repatriated to the United States from Wuhan, China and Japan. State and local public health departments are now testing and publicly reporting their cases. In the event of a discrepancy between CDC cases and cases reported by sta and local public health o"cials, data reported by states should be considered the most up to date.
†Self-reported by health department characterizing the level of community transmission in their jurisdiction as: “Yes, widespread” (de!ned a widespread community transmission across several geographical areas); “Yes, de!ned area(s)” (de!ned as: distinct clusters of cases in a, or few, de!ned geographical area(s)); “Undetermined” (de!ned as: 1 or more cases but not classi!ed as “Yes” to community transmission); or “N/A” (de!ned as: no cases).

Cumulative total number of COVID-19 cases in the United States by report date, January 12, 2020, to March 25, 2020, at 4pm ET (n=68,440)*

Total number of cases

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 11 of 93

60000

50000

40000 30000

No Data Available

20000

10000

0 01/22/2020

01/29/2020

02/05/2020

02/12/2020

02/19/2020

02/26/2020

03/04/2020

03/11/2020

03/18/2020

03/25/2020

Report Date

Total number of cases

Total number of COVID-19 cases in the United States by date reported

Total number of cases

01/22/2020 1

01/23/2020 1

01/24/2020 2

01/25/2020 2

01/26/2020 5

01/27/2020 5

01/28/2020 5

Scroll for additional

* Does not include cases among persons repatriated to the United States from Wuhan, China and Japan.
COVID-19 cases in the United States by date of illness onset, Januar 12, 2020, to March 25, 2020, at 4pm ET (n=11,165)*

Number of cases

1100 1000
900 800 700 600 500 400 300 200 100
0 01/12/2020

01/20/2020

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 12 of 93

Illnesses that began during this time may not yet be reported**

No Data Available

01/28/2020 02/05/2020 02/13/2020 02/21/2020 02/29/2020 03/08/2020 03/16/2020 03/24/2020

Date of illness onset

Number of cases Reset

COVID-19 cases in the United States by date of illness onset

Number of cases

01/12/2020 0

01/13/2020 0

01/14/2020 2

01/15/2020 0

01/16/2020 1

01/17/2020 0

01/18/2020 0

01/1

Region Name Illnesses that began during this time may not yet be reported**

Scroll for additional

Start Date 03/15/2020

End Date 03/25/

Illnesses that began during this time may not yet be
* Does not include cases among persons repatriated to the United States from Wuhan, China and Japan, or U.S.-identi!ed cases where the dat illness onset or specimen collection date has not yet been reported. Date is calculated as illness onset date if known. If not, an estimated illnes onset date was calculated using specimen collection date.
Note: On March 24, CDC updated the data included in this !gure to include estimated illness onset date.

Related Pages

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 13 of 93

Con!rmed COVID-19 Cases Global Map About Coronavirus Disease 2019 (COVID-19) Information for Healthcare Professionals Guidance for Travelers

Page last reviewed: March 26

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 14 of 93
Exhibit C

CoronaCvasieru1:2s0-cdv-i1s0e61a7-sWeGY20Do1c9um(eCnt 1O2-V10IDFi-le1d903)/27/20 Page 15 of 93
Situation Report – 66

Data as reported by national authorities by 10:00 CET 26 March 2020

HIGHLIGHTS
• Three new countries/territories/areas from the Region of the Americas [1], and African Region [2] have reported cases of COVID-19.
• The United Nations launched a US$2 billion COVID-19 Global Humanitarian Response Plan to support the world’s most vulnerable countries. More information can be found here.
• The WHO Director-General mentioned many key issues and action steps to effectively combat COVID-19, as well as maintaining physical distance but not social distance. More information can be found here.
• WHO published the COVID-19: Operational guidance for maintaining essential health services during an outbreak and the Handbook for public health capacity-building at ground crossings and cross-border collaboration on 25 March 2020. All guidance documents can be found here.
• In line with current evidence, WHO maintains the recommendations of droplet and contact precautions for healthcare workers caring for COVID-19 patients. For those performing aerosol generating procedures, WHO recommends airborne and contact precautions. The use of medical masks, eye protection, gloves and gown are required for direct patient care; respirator masks are specifically required for aerosol generating procedures. Greater detail can be found in “Subject in Focus” below.

SITUATION IN NUMBERS
total (new) cases in last 24 hours

Globally 462 684 confirmed (49 219) 20 834 deaths (2401)

Western Pacific Region 99 058 confirmed (1292) 3540 deaths (22)

European Region 250 287 confirmed (29 771) 13 950 deaths (1964)

South-East Asia Region 2536 confirmed (192) 79 deaths (7)

Eastern Mediterranean Region 32 442 confirmed (2811) 2162 deaths (154)

Region of the Americas 75 712 confirmed (14 878) 1065 deaths (252)

African Region 1937 confirmed (275) 31 deaths (2)

WHO RISK ASSESSMENT

Global Level

Very High

Figure 1. Countries, territories or areas with reported confirmed cases of COVID-19, 26 March 2020

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 16 of 93
SUBJECT IN FOCUS: COVID-19 virus persistence: Implications for transmission and precaution recommendations
An experimental study, which evaluated virus persistence of the COVID-19 virus (SARS-CoV-2), has recently been published in the NEJM1. In this experimental study, aerosols were generated using a three-jet Collison nebulizer and fed into a Goldberg drum under controlled laboratory conditions. This is a high-powered machine that does not reflect normal human coughing or sneezing nor does it reflect aerosol generating procedures in clinical settings. Furthermore, the findings do not bring new evidence on airborne transmission as aerosolization with particles potentially containing the virus was already known as a possibility during procedures generating aerosols.
In all other contexts, available evidence indicates that COVID-19 virus is transmitted during close contact through respiratory droplets (such as coughing) and by fomites.2-8 The virus can spread directly from person to person when a COVID-19 case coughs or exhales producing droplets that reach the nose, mouth or eyes of another person. Alternatively, as the droplets are too heavy to be airborne, they land on objects and surfaces surrounding the person. Other people become infected with COVID-19 by touching these contaminated objects or surfaces, then touching their eyes, nose or mouth. According to the currently available evidence, transmission through smaller droplet nuclei (airborne transmission) that propagate through air at distances longer than 1 meter is limited to aerosol generating procedures during clinical care of COVID-19 patients.
As such, WHO continues to recommend that everyone performs hand hygiene frequently, follows respiratory etiquette recommendations and regularly clean and disinfect surfaces. WHO also continues to recommend the importance of maintaining physical distances and avoiding people with fever or respiratory symptoms. These preventive measures will limit viral transmission.
Since the start of the COVID-19 outbreak, and in alignment with available evidence, WHO maintains the recommendation, in the context of droplet and contact precautions for the use of medical masks for regular care of COVID-19 patients and respirators (N95, FFP2 or FFP3) for circumstances and settings where aerosol generating procedures are performed.9
References
1. van Doremalen N, Morris D, Bushmaker T et al. Aerosol and Surface Stability of SARS-CoV-2 as compared with SARSCoV-1. New Engl J Med 2020 doi: 10.1056/NEJMc2004973
2. Liu J, Liao X, Qian S et al. Community transmission of severe acute respiratory syndrome coronavirus 2, Shenzhen, China, 2020. Emerg Infect Dis 2020 doi.org/10.3201/eid2606.200239
3. Chan J, Yuan S, Kok K et al. A familial cluster of pneumonia associated with the 2019 novel coronavirus indicating person-to-person transmission: a study of a family cluster. Lancet 2020 doi: 10.1016/S0140-6736(20)30154-9
4. Li Q, Guan X, Wu P, et al. Early transmission dynamics in Wuhan, China, of novel coronavirus-infected pneumonia. N Engl J Med 2020; doi:10.1056/NEJMoa2001316.
5. Huang C, Wang Y, Li X, et al. Clinical features of patients infected with 2019 novel coronavirus in Wuhan, China. Lancet 2020; 395: 497–506.
6. Burke RM, Midgley CM, Dratch A, Fenstersheib M, Haupt T, Holshue M,et al. Active monitoring of persons exposed to patients with confirmed COVID-19 — United States, January–February 2020. MMWR Morb Mortal Wkly Rep. 2020 doi : 10.15585/mmwr.mm6909e1external icon
7. World Health Organization. Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) 16-24 February 2020 [Internet]. Geneva: World Health Organization; 2020 Available from: https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf
8. Ong SW, Tan YK, Chia PY, Lee TH, Ng OT, Wong MS, et al. Air, surface environmental, and personal protective equipment contamination by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) from a symptomatic patient. JAMA. 2020 Mar 4 [Epub ahead of print].
9. WHO Infection Prevention and Control Guidance for COVID-19 available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/infection-prevention-andcontrol

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 17 of 93

SURVEILLANCE

Table 1. Countries, territories or areas with reported laboratory-confirmed COVID-19 cases and deaths. Data as of

26 March 2020*

Reporting Country/ Territory/Area†

Total

Total

confirmed confirmed

‡ cases new cases

Total deaths

Total new deaths

Transmission classification§

Days since last reported case

Western Pacific Region

China

81961

113

3293

6

Local transmission

0

Republic of Korea

9241

104

131

5

Local transmission

0

Australia

2799

547

11

3

Local transmission

0

Malaysia

1796

172

19

3

Local transmission

0

Japan

1291

98

45

2

Local transmission

0

Philippines

636

84

38

3

Local transmission

0

Singapore

631

73

2

0

Local transmission

0

New Zealand

262

73

0

0

Local transmission

0

Viet Nam

141

7

0

0

Local transmission

0

Brunei Darussalam

109

5

0

0

Local transmission

0

Cambodia

96

5

0

0

Local transmission

0

Mongolia

10

0

0

0

Imported cases only

4

Fiji

5

1

0

0

Local transmission

0

Lao People's Democratic Republic

3

1

0

0

Under investigation

0

Papua New Guinea

1

0

0

0

Imported cases only

5

Territories**

Guam

37

5

1

0

Local transmission

0

French Polynesia

25

0

0

0

Local transmission

1

New Caledonia

14

4

0

0

Local transmission

0

European Region

Italy

74386

5210

7505

685

Local transmission

0

Spain

47610

7937

3434

738

Local transmission

0

Germany

36508

4954

198

49

Local transmission

0

France

24920

2895

1331

231

Local transmission

0

Switzerland

9714

925

103

17

Local transmission

0

The United Kingdom

9533

1452

463

41

Local transmission

0

Netherlands

6412

852

356

80

Local transmission

0

Austria

5888

606

34

4

Local transmission

0

Belgium

4937

668

178

56

Local transmission

0

Portugal

2995

633

43

10

Local transmission

0

Norway

2916

350

12

2

Local transmission

0

Sweden

2510

238

42

6

Local transmission

0

Turkey

2433

561

59

15

Local transmission

0

Israel

2369

199

5

0

Local transmission

0

Denmark

1724

133

34

2

Local transmission

0

Czechia

1654

260

6

3

Local transmission

0

Ireland

1564

235

9

2

Local transmission

0

Luxembourg

1333

234

8

0

Local transmission

0

Poland

1051

150

14

4

Local transmission

0

Romania

906

144

13

2

Local transmission

0

Finland

880

88

3

2

Local transmission

0

Russian Federation

840

182

2

2

Local transmission

0

Greece

821

78

22

2

Local transmission

0

Iceland

737

89

2

0

Local transmission

0

Slovenia

528

48

4

1

Local transmission

0

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 18 of 93

Croatia

418

36

1

0

Local transmission

0

Estonia

404

35

1

1

Local transmission

0

Serbia

384

81

4

1

Local transmission

0

Armenia

290

25

0

0

Local transmission

0

Lithuania

274

65

4

2

Local transmission

0

Hungary

261

35

10

0

Local transmission

0

Bulgaria

242

22

3

0

Local transmission

0

Latvia

221

24

0

0

Local transmission

0

Slovakia

216

12

0

0

Local transmission

0

Andorra

213

25

3

2

Local transmission

0

San Marino

208

21

21

0

Local transmission

0

North Macedonia

177

29

2

0

Local transmission

0

Albania

174

28

5

0

Local transmission

0

Bosnia and Herzegovina

173

9

3

1

Local transmission

0

Ukraine

156

43

5

1

Local transmission

0

Republic of Moldova

149

24

1

0

Local transmission

0

Cyprus

132

8

3

0

Local transmission

0

Malta

129

9

0

0

Local transmission

0

Kazakhstan

97

18

0

0

Imported cases only

0

Azerbaijan

93

6

2

1

Local transmission

0

Belarus

86

5

0

0

Local transmission

0

Georgia

77

4

0

0

Local transmission

0

Uzbekistan

65

15

0

0

Local transmission

0

Montenegro

52

23

1

1

Imported cases only

0

Liechtenstein

51

4

0

0

Imported cases only

0

Kyrgyzstan

44

2

0

0

Local transmission

0

Monaco

23

0

0

0

Local transmission

3

Holy See

4

3

0

0

Under investigation

0

Territories**

Faroe Islands

132

10

0

0

Local transmission

0

Kosovo[1]

71

8

1

0

Local transmission

0

Guernsey

30

7

0

0

Local transmission

0

Gibraltar

26

11

0

0

Local transmission

0

Isle of Man

23

0

0

0

Imported cases only

1

Jersey

18

2

0

0

Local transmission

0

Greenland

5

1

0

0

Under investigation

0

South-East Asia Region

Thailand

934

0

4

0

Local transmission

1

Indonesia

790

104

58

3

Local transmission

0

India

649

87

13

4

Local transmission

0

Sri Lanka

102

0

0

0

Local transmission

1

Bangladesh

39

0

4

0

Local transmission

1

Maldives

13

0

0

0

Local transmission

10

Myanmar

3

0

0

0

Imported cases only

1

Nepal

3

1

0

0

Imported cases only

0

Bhutan

2

0

0

0

Imported cases only

6

Timor-Leste

1

0

0

0

Imported cases only

5

Eastern Mediterranean Region

Iran (Islamic Republic of)

27017

2206

2077

143

Local transmission

0

Pakistan

1057

66

8

1

Local transmission

0

Saudi Arabia

900

133

2

1

Local transmission

0

Qatar

537

11

0

0

Local transmission

0

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 19 of 93

Egypt

456

54

21

1

Local transmission

0

Bahrain

419

27

4

1

Local transmission

0

Iraq

346

30

29

2

Local transmission

0

Lebanon

333

29

4

0

Local transmission

0

United Arab Emirates 333

85

2

0

Local transmission

0

Morocco

225

55

6

1

Local transmission

0

Kuwait

208

13

0

0

Local transmission

0

Tunisia

173

59

5

2

Local transmission

0

Jordan

172

19

0

0

Local transmission

0

Oman

99

0

0

0

Local transmission

1

Afghanistan

80

6

2

1

Local transmission

0

Djibouti

12

9

0

0

Local transmission

0

Syrian Arab Republic

5

4

0

0

Imported cases only

0

Sudan

3

0

1

0

Imported cases only

1

Somalia

2

1

0

0

Imported cases only

0

Libya

1

0

0

0

Imported cases only

1

Territories**

occupied Palestinian territory

64

4

1

1

Local transmission

0

Region of the Americas

United States of America

63570

11656

884

211

Local transmission

0

Canada

3409

1670

35

10

Local transmission

0

Brazil

2433

232

57

11

Local transmission

0

Ecuador

1211

162

29

2

Local transmission

0

Chile

1142

220

3

1

Local transmission

0

Panama

558

213

8

2

Local transmission

0

Peru

480

64

9

4

Local transmission

0

Mexico

478

108

5

1

Local transmission

0

Colombia

470

164

4

1

Local transmission

0

Dominican Republic

392

80

10

4

Local transmission

0

Argentina

387

86

6

2

Local transmission

0

Uruguay

217

55

0

0

Imported cases only

0

Costa Rica

201

24

2

0

Local transmission

0

Venezuela (Bolivarian Republic of)

91

14

0

0

Local transmission

0

Trinidad and Tobago

60

3

1

1

Local transmission

0

Cuba

57

9

1

0

Local transmission

0

Honduras

52

22

0

0

Local transmission

0

Paraguay

41

14

3

1

Local transmission

0

Bolivia (Plurinational State of)

39

11

0

0

Local transmission

0

Jamaica

26

5

1

0

Local transmission

0

Guatemala

24

3

1

0

Local transmission

0

Barbados

18

0

0

0

Local transmission

1

El Salvador

13

8

0

0

Imported cases only

0

Haiti

8

1

0

0

Imported cases only

0

Dominica

7

5

0

0

Local transmission

0

Suriname

7

1

0

0

Imported cases only

0

Bahamas

5

1

0

0

Local transmission

0

Guyana

5

0

1

0

Local transmission

7

Antigua and Barbuda

3

0

0

0

Imported cases only

1

Saint Lucia

3

0

0

0

Imported cases only

2

Belize

2

1

0

0

Local transmission

0

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 20 of 93

Nicaragua

2

0

0

0

Imported cases only

4

Saint Kitts and Nevis

2

2

0

0

Imported cases only

0

Grenada

1

0

0

0

Imported cases only

3

Saint Vincent and the Grenadines

1

0

0

0

Imported cases only

13

Territories**

Guadeloupe

76

3

0

0

Imported cases only

0

Martinique

66

9

1

1

Imported cases only

0

Puerto Rico

51

12

2

0

Imported cases only

0

French Guiana

28

5

0

0

Local transmission

0

Aruba

19

7

0

0

Local transmission

0

United States Virgin Islands

17

0

0

0

Imported cases only

2

Saint Martin

11

3

0

0

Under investigation

0

Cayman Islands

8

3

1

0

Imported cases only

0

Bermuda

7

1

0

0

Local transmission

0

Curaçao

6

0

1

0

Imported cases only

1

Saint Barthélemy

3

0

0

0

Under investigation

10

Montserrat

2

1

0

0

Imported cases only

0

Sint Maarten

2

0

0

0

Imported cases only

2

Turks and Caicos Islands

1

0

0

0

Imported cases only

2

African Region

South Africa

709

155

0

0

Local transmission

0

Algeria

264

0

17

0

Local transmission

1

Burkina Faso

146

32

3

0

Local transmission

0

Senegal

99

13

0

0

Local transmission

0

Côte d’Ivoire

80

8

0

0

Imported cases only

0

Cameroon

70

0

1

0

Local transmission

2

Ghana

68

15

2

0

Local transmission

0

Democratic Republic of the Congo

51

6

3

1

Local transmission

0

Mauritius

47

5

2

0

Imported cases only

0

Nigeria

46

4

1

1

Local transmission

0

Rwanda

41

1

0

0

Local transmission

0

Kenya

25

0

0

0

Local transmission

1

Togo

23

3

0

0

Imported cases only

0

Madagascar

19

0

0

0

Imported cases only

1

Uganda

14

5

0

0

Imported cases only

0

United Republic of Tanzania

13

1

0

0

Imported cases only

0

Ethiopia

12

0

0

0

Imported cases only

1

Seychelles

7

0

0

0

Imported cases only

4

Equatorial Guinea

6

0

0

0

Imported cases only

4

Gabon

6

0

1

0

Imported cases only

3

Benin

5

0

0

0

Imported cases only

2

Central African Republic

5

1

0

0

Imported cases only

0

Mozambique

5

2

0

0

Local transmission

0

Namibia

5

1

0

0

Imported cases only

0

Congo

4

0

0

0

Imported cases only

4

Eritrea

4

3

0

0

Imported cases only

0

Eswatini

4

0

0

0

Imported cases only

3

Guinea

4

0

0

0

Imported cases only

2

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 21 of 93

Cabo Verde

3

0

0

0

Imported cases only

4

Chad

3

0

0

0

Imported cases only

2

Liberia

3

0

0

0

Local transmission

4

Zambia

3

0

0

0

Imported cases only

3

Angola

2

0

0

0

Imported cases only

4

Gambia

2

0

0

0

Imported cases only

1

Guinea-Bissau

2

2

0

0

Imported cases only

0

Mali

2

2

0

0

Imported cases only

0

Mauritania

2

0

0

0

Imported cases only

7

Niger

2

0

0

0

Imported cases only

2

Zimbabwe

2

0

1

0

Imported cases only

4

Territories**

Réunion

94

11

0

0

Local transmission

0

Mayotte

35

5

0

0

Local transmission

0

Subtotal for all regions

461972

49219

20827 2401

International

conveyance

712

0

7

0

Local transmission

10

(Diamond Princess)

Grand total

462684

49219

20834 2401

*Numbers include both domestic and repatriated cases

†The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on

the part of WHO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its

frontiers or boundaries. Dotted and dashed lines on maps represent approximate border lines for which there may not yet be full agreement. ‡Case classifications are based on WHO case definitions for COVID-19. §Transmission classification is based on WHO analysis of available official data and may be subject to reclassification as additional data become available. Countries/territories/areas experiencing multiple types of transmission are classified in the highest category for which there is

evidence; they may be removed from a given category if interruption of transmission can be demonstrated. It should be noted that even within

categories, different countries/territories/areas may have differing degrees of transmission as indicated by the differing numbers of cases and other factors. Not all locations within a given country/territory/area are equally affected.

Terms: -
-

Community transmission is evidenced by the inability to relate confirmed cases through chains of transmission for a large number of cases, or by increasing positive tests through sentinel samples (routine systematic testing of respiratory samples from established laboratories). Local transmission indicates locations where the source of infection is within the reporting location. Imported cases only indicates locations where all cases have been acquired outside the location of reporting.

- Under investigation indicates locations where type of transmission has not been determined for any cases.

- Interrupted transmission indicates locations where interruption of transmission has been demonstrated (details to be determined)
** “Territories” include territories, areas, overseas dependencies and other jurisdictions of similar status

[1] All references to Kosovo should be understood to be in the context of the United Nations Security Council resolution 1244 (1999).

Due to differences in reporting methods, retrospective data consolidation, and reporting delays, the number of new cases may not always reflect the exact difference between yesterday’s and today’s totals. WHO COVID-19 Situation Reports present official counts of confirmed COVID-19 cases, thus differences between WHO reports and other sources of COVID-19 data using different inclusion criteria and different data cutoff times are to be expected.

New countries/territories/areas are shown in red.

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 22 of 93 Figure 2. Epidemic curve of confirmed COVID-19, by date of report and WHO region through 26 March 2020
STRATEGIC OBJECTIVES WHO’s strategic objectives for this response are to:
• Interrupt human-to-human transmission including reducing secondary infections among close contacts and health care workers, preventing transmission amplification events, and preventing further international spread*;
• Identify, isolate and care for patients early, including providing optimized care for infected patients; • Identify and reduce transmission from the animal source; • Address crucial unknowns regarding clinical severity, extent of transmission and infection, treatment
options, and accelerate the development of diagnostics, therapeutics and vaccines; • Communicate critical risk and event information to all communities and counter misinformation; • Minimize social and economic impact through multisectoral partnerships. *This can be achieved through a combination of public health measures, such as rapid identification, diagnosis and management of the cases, identification and follow up of the contacts, infection prevention and control in health care settings, implementation of health measures for travelers, awareness-raising in the population and risk communication.

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PREPAREDNESS AND RESPONSE
• To view all technical guidance documents regarding COVID-19, please go to this webpage. • WHO has developed interim guidance for laboratory diagnosis, advice on the use of masks during home care and
in health care settings in the context of the novel coronavirus (2019-nCoV) outbreak, clinical management, infection prevention and control in health care settings, home care for patients with suspected novel coronavirus, risk communication and community engagement and Global Surveillance for human infection with novel coronavirus (2019-nCoV). • WHO is working closely with International Air Transport Association (IATA) and have jointly developed a guidance document to provide advice to cabin crew and airport workers, based on country queries. The guidance can be found on the IATA webpage. • WHO has been in regular and direct contact with Member States where cases have been reported. WHO is also informing other countries about the situation and providing support as requested. • WHO is working with its networks of researchers and other experts to coordinate global work on surveillance, epidemiology, mathematical modelling, diagnostics and virology, clinical care and treatment, infection prevention and control, and risk communication. WHO has issued interim guidance for countries, which are updated regularly. • WHO has prepared a disease commodity package that includes an essential list of biomedical equipment, medicines and supplies necessary to care for patients with 2019-nCoV. • WHO has provided recommendations to reduce risk of transmission from animals to humans. • WHO has published an updated advice for international traffic in relation to the outbreak of the novel coronavirus 2019-nCoV. • WHO has activated the R&D blueprint to accelerate diagnostics, vaccines, and therapeutics. • OpenWHO is an interactive, web-based, knowledge-transfer platform offering online courses to improve the response to health emergencies. COVID-19 courses can be found here and courses in additional national languages here. Specifically, WHO has developed online courses on the following topics:
o A general introduction to emerging respiratory viruses, including novel coronaviruses (available in Arabic, Chinese, English, French, Russian, Spanish, Hindi, Indian Sign Language, Persian, Portuguese, Serbian and Turkish);
o Clinical care for Severe Acute Respiratory Infections (available in English, French, Russian, Indonesian and Vietnamese);
o Health and safety briefing for respiratory diseases - ePROTECT (available in Chinese, English, French, Russian, Spanish, Indonesian and Portuguese);
o Infection Prevention and Control for Novel Coronavirus (COVID-19) (available in Chinese, English, French, Russian, Spanish, Indonesian, Italian, Japanese, Portuguese and Serbian); and
o COVID-19 Operational Planning Guidelines and COVID-19 Partners Platform to support country preparedness and response (available in English and coming soon in additional languages).
• WHO is providing guidance on early investigations, which are critical in an outbreak of a new virus. The data collected from the protocols can be used to refine recommendations for surveillance and case definitions, to characterize the key epidemiological transmission features of COVID-19, help understand spread, severity, spectrum of disease, impact on the community and to inform operational models for implementation of countermeasures such as case isolation, contact tracing and isolation. Several protocols are available here. One such protocol is for the investigation of early COVID-19 cases and contacts (the “First Few X (FFX) Cases and contact investigation protocol for 2019-novel coronavirus (2019-nCoV) infection”). The protocol is designed to gain an early understanding of the key clinical, epidemiological and virological characteristics of the first cases of COVID-19 infection detected in any individual country, to inform the development and updating of public health guidance to manage cases and reduce the potential spread and impact of infection.

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RECOMMENDATIONS AND ADVICE FOR THE PUBLIC
If you are not in an area where COVID-19 is spreading or have not travelled from an area where COVID-19 is spreading or have not been in contact with an infected patient, your risk of infection is low. It is understandable that you may feel anxious about the outbreak. Get the facts from reliable sources to help you accurately determine your risks so that you can take reasonable precautions (see Frequently Asked Questions). Seek guidance from WHO, your healthcare provider, your national public health authority or your employer for accurate information on COVID-19 and whether COVID-19 is circulating where you live. It is important to be informed of the situation and take appropriate measures to protect yourself and your family (see Protection measures for everyone).
If you are in an area where there are cases of COVID-19 you need to take the risk of infection seriously. Follow the advice of WHO and guidance issued by national and local health authorities. For most people, COVID-19 infection will cause mild illness however, it can make some people very ill and, in some people, it can be fatal. Older people, and those with pre-existing medical conditions (such as cardiovascular disease, chronic respiratory disease or diabetes) are at risk for severe disease (See Protection measures for persons who are in or have recently visited (past 14 days) areas where COVID-19 is spreading).
CASE DEFINITIONS
WHO periodically updates the Global Surveillance for human infection with coronavirus disease (COVID-19) document which includes case definitions.
For easy reference, case definitions are included below.
Suspect case A. A patient with acute respiratory illness (fever and at least one sign/symptom of respiratory disease, e.g., cough,
shortness of breath), AND a history of travel to or residence in a location reporting community transmission of COVID-19 disease during the 14 days prior to symptom onset. OR B. A patient with any acute respiratory illness AND having been in contact with a confirmed or probable COVID-19 case (see definition of contact) in the last 14 days prior to symptom onset; OR C. A patient with severe acute respiratory illness (fever and at least one sign/symptom of respiratory disease, e.g., cough, shortness of breath; AND requiring hospitalization) AND in the absence of an alternative diagnosis that fully explains the clinical presentation.
Probable case A. A suspect case for whom testing for the COVID-19 virus is inconclusive.
a. Inconclusive being the result of the test reported by the laboratory. OR B. A suspect case for whom testing could not be performed for any reason.
Confirmed case A person with laboratory confirmation of COVID-19 infection, irrespective of clinical signs and symptoms.
• Technical guidance for laboratory testing can be found here.
Definition of contact A contact is a person who experienced any one of the following exposures during the 2 days before and the 14 days

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1. Face-to-face contact with a probable or confirmed case within 1 meter and for more than 15 minutes; 2. Direct physical contact with a probable or confirmed case; 3. Direct care for a patient with probable or confirmed COVID-19 disease without using proper personal
protective equipment1; OR 4. Other situations as indicated by local risk assessments. Note: for confirmed asymptomatic cases, the period of contact is measured as the 2 days before through the 14 days after the date on which the sample was taken which led to confirmation.
1 World Health Organization. Infection prevention and control during health care when COVID-19 is suspected https://www.who.int/publications-detail/infection-prevention-and-control-during-health-care-when-novel-coronavirus-(ncov)infection-is-suspected-20200125

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Exhibit D

12-10 Filed 03/27/20 Page 27 of 93
Preparedness, prevention and control of COVID-19 in prisons and other places of detention
Interim guidance 15 March 2020

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 28 of 93
Preparedness, prevention and control of COVID-19 in prisons and other places of detention
Interim guidance 15 March 2020

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This document is based on the latest available evidence on the COVID-19 outbreak as of 15 March 2020. The World Health Organization (WHO) continues to monitor the situation closely for any changes that may affect this interim guidance. Should any factors change, WHO will issue a further update.
Address requests about publications of the WHO Regional Office for Europe to: Publications WHO Regional Office for Europe UN City, Marmorvej 51 DK-2100 Copenhagen Ø, Denmark Alternatively, complete an online request form for documentation, health information, or for permission to quote or translate, on the Regional Office website (http://www.euro.who.int/pubrequest).
© World Health Organization 2020 All rights reserved. The Regional Office for Europe of the World Health Organization welcomes requests for permission to reproduce or translate its publications, in part or in full. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the World Health Organization concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Dotted lines on maps represent approximate border lines for which there may not yet be full agreement. The mention of specific companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by the World Health Organization in preference to others of a similar nature that are not mentioned. Errors and omissions excepted, the names of proprietary products are distinguished by initial capital letters. All reasonable precautions have been taken by the World Health Organization to verify the information contained in this publication. However, the published material is being distributed without warranty of any kind, either express or implied. The responsibility for the interpretation and use of the material lies with the reader. In no event shall the World Health Organization be liable for damages arising from its use. The views expressed by authors, editors, or expert groups do not necessarily represent the decisions or the stated policy of the World Health Organization.

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CONTENTS iii

Acknowledgements

iv

Abbreviations

v

1. Introduction

1

2. Rationale

2

3. Planning principles and human rights

considerations

3

4. Scope and objectives

6

5. Target audience

7

6. General approach

8

7. COVID-19 virus: pathogen characteristics,

signs and symptoms, transmission

10

7.1 Pathogen characteristics

10

7.2 Signs and symptoms of COVID-19

10

7.3 Transmission of COVID-19

10

7.4 How long can the virus survive on surfaces? 11

8. Preparedness, contingency planning

and level of risk

12

9. Training and education

14

10. Risk communication

15

11. Important definitions: suspect case,

probable case, confirmed case, contacts,

case reporting

16

11.1 Definition of a suspect case

17

11.2 Definition of a probable case

17

11.3 Definition of a confirmed case

17

11.4 Definition of a contact

17

11.5 Case reporting

18

12. Prevention measures

19

12.1 Personal protection measures

19

12.2 Use of masks

19

12.3 Environmental measures

20

12.4 Physical distancing measures

21

12.5 Considerations for access restriction and

movement limitations

21

12.6 Staff returning to work following travel to

affected areas or with a history of potential

exposure

22

12.7 What to do if a member of staff becomes

unwell and believes they have been exposed

to COVID-19

22

13. Assessing suspected cases of COVID-19

in people in prison/detention

24

13.1 Advice on use of PPE and other standard

precautions for health-care staff and

custodial staff with patient-facing roles

24

13.2 Advice for policing, border force and

immigration enforcement activities

26

14. Case management

27

14.1 Clinical management of severe acute

respiratory infection (SARI) when COVID-19

is suspected

27

14.2 Additional precautions

28

14.3 How to undertake environmental cleaning

following a suspected case in a prison or

other place of detention

28

14.4 Discharge of people from prisons and other

places of detention

28

15. Information resources

29

Annex 1. Environmental cleaning following

a suspected case of COVID-19 in a place of

detention

31

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iv ACKNOWLEDGEMENTS
The development of this document was coordinated by Carina Ferreira-Borges, Programme Manager, Alcohol, Illicit Drugs and Prison Health, WHO Regional Office for Europe, who was also part of the core group for the development of this publication. The work was developed under the leadership of Dr João Breda, head of the WHO European Office for the Prevention and Control of Noncommunicable Diseases, and in consultation with the Incident Management Team of the WHO Health Emergencies Programme, WHO Regional Office for Europe, and WHO headquarters, Geneva, Switzerland.
Contributions were received from Masoud Dara, Coordinator, Communicable Diseases, Division of Health Emergencies and Communicable Diseases, WHO Regional Office for Europe; Jeffrey Gilbert, IMT_COVID-19, Information Management, WHO, Beijing, China; Filipa Alves da Costa, WHO European Office for the Prevention and Control of Noncommunicable Diseases; Fahmy Hanna, Department of Mental Health and Substance Abuse, WHO headquarters; Kanokporn Kaojaroen, Health and Migration Programme, WHO headquarters; Teresa Zakaria, Elizabeth Armstrong Bancroft, Rudi Coninx, Adelheid Marschang and Maria Van Kerkhove, Health Emergencies Programme, WHO headquarters.
WHO is very grateful to the following experts, who constituted the core group for the development of this publication (in alphabetical order):
• Daniel Lopez-Acuña, Andalusian School of Public Health, Granada, Spain • Éamonn O’Moore, National Lead for Health and Justice, Public Health England, and Director, UK
Collaborating Centre for WHO Health in Prisons Programme • Lara Tavoschi, Senior researcher in public health, University of Pisa, Italy • Marc Lehmann, Medical adviser, Ministry of Justice State of Berlin, Berlin, Germany • Stefan Enggist, Federal Department of Home Affairs, Federal Office of Public Health, Department of
Communicable Diseases, Switzerland • Sunita Sturup-Toft, Public Health Specialist, Public Health England, and UK Collaborating Centre for WHO
Health in Prisons Programme.
WHO is also grateful for the insights and contributions provided by the following reviewers: Elena Leclerc, Health Programme Coordinator, Health Care in Detention, Health Unit, Assistance Programme, International Committee of the Red Cross, Geneva, Switzerland Erika Duffell, Air-Borne, Blood-Borne and Sexually Transmitted Infections, DPR, European Centre for Disease Prevention and Control Hans Wolff, Service de médecine pénitentiaire, Hôpitaux universitaires de Genève, Switzerland Fadi Meroueh, Chef de Service Unité Sanitaire CHU de Montpellier, France, Health Without Barriers (HWB) President Gary Forrest, Chief Executive, Justice Health and Forensic Mental Health Network, Australia Hanna Hemminki-Salin, Chief Physician of Outpatient Services, Health Services for Prisoners, National Institute for Health and Welfare, Finland

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Laurent Getaz, Division of Prison Health, Hôpitaux universitaires de Genève, Switzerland

v

Michel Westra, Medical adviser, Dienst Justitiële Inrichtinge (Custodial Institutions Agency), Netherlands

Ruggero Giuliani and Roberto Ranieri, Infectious Diseases Service, Penitentiary Health System, San Paolo University Hospital, Milan, Italy

Robert B. Greifinger, Professor of Health and Criminal Justice, John Jay College of Criminal Justice, New York, USA

Robert Charles Paterson, Health Care in Detention, Health Unit, Assistance Programme, International Committee of the Red Cross, Geneva, Switzerland

Roberto Monarca, Infectious Diseases Specialist, Maximum Security Prison of Viterbo, Lead of Territorial Department of Infectious Diseases, Viterbo, Italy

Philipp Meissner, Justice Section, Division for Operations, United Nations Office on Drugs and Crime

Claudia Baroni, Justice Section, Division for Operations, United Nations Office on Drugs and Crime

Sven Pfeiffer, Justice Section, Division for Operations, United Nations Office on Drugs and Crime

Tracey Flanagan, Manager, Justice Health and Forensic Mental Health Network, Australia.

Images were provided by the Ministry of Health of Kyrgyzstan from a simulation exercise and are included with their permission for illustrative purposes only.

This publication was developed with financial assistance from the Finnish Ministry of Social Affairs and Health.

ABBREVIATIONS

ARDS COVID-19 ECDC HCID IPC MERS nCoV PHE PPE SARI SARS SARS-CoV-2 UNODC WHO

acute respiratory distress syndrome coronavirus disease 2019 European Centre for Disease Prevention and Control high-consequence infectious disease infection prevention and control Middle East respiratory syndrome novel coronavirus Public Health England personal protective equipment severe acute respiratory infection severe acute respiratory syndrome severe acute respiratory syndrome coronavirus 2 United Nations Office on Drugs and Crime World Health Organization

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PREPAREDNESS, PREVENTION AND CONTROL OF COVID-19 IN PRISONS AND OTHER PLACES OF DETENTION
vi

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1 1
1. INTRODUCTION
People deprived of their liberty, such as people in prisons and other places of detention,1 are likely to be more vulnerable to the coronavirus disease (COVID-19) outbreak than the general population because of the confined conditions in which they live together for prolonged periods of time. Moreover, experience shows that prisons, jails and similar settings where people are gathered in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. Prison health is therefore widely considered as public health. The response to COVID-19 in prisons and other places of detention is particularly challenging, requiring a whole-of-government and whole-of-society approach, for the following reasons:2,3
1. Widespread transmission of an infectious pathogen affecting the community at large poses a threat of introduction of the infectious agent into prisons and other places of detention; the risk of rapidly increasing transmission of the disease within prisons or other places of detention is likely to have an amplifying effect on the epidemic, swiftly multiplying the number of people affected.
2. Efforts to control COVID-19 in the community are likely to fail if strong infection prevention and control (IPC) measures, adequate testing, treatment and care are not carried out in prisons and other places of detention as well.
3. In many countries, responsibility for health-care provision in prisons and other places of detention lies with the Ministry of Justice/Internal Affairs. Even if this responsibility is held by the Ministry of Health, coordination and collaboration between health and justice sectors are paramount if the health of people in prisons and other places of detention and the wider community is to be protected.
4. People in prisons and other places of detention are already deprived of their liberty and may react differently to further restrictive measures imposed upon them.
1 Places of detention, as defined for the purposes of these guidelines, include prisons, justice-related detention settings and immigration removal centres. 2 2019 Novel Coronavirus (2019-nCOV): Strategic Preparedness and Response Plan. Geneva: World Health Organization; 2020 (https://www.who.int/docs/default-source/
coronaviruse/srp-04022020.pdf?sfvrsn=7ff55ec0_4&download=true). 3 Good governance for prison health in the 21st century: a policy brief on the organization of prison health. Copenhagen: WHO Regional Office for Europe/Vienna: United Nations
Office on Drugs and Crime; 2013 (http://www.euro.who.int/__data/assets/pdf_file/0017/231506/Good-governance-for-prison-health-in-the-21st-century.pdf).

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PREPAREDNESS, PREVENTION AND CONTROL OF COVID-19 IN PRISONS AND OTHER PLACES OF DETENTION
2 2. RATIONALE
People deprived of their liberty, such as people in prisons, are likely to be more vulnerable to various diseases and conditions. The very fact of being deprived of liberty generally implies that people in prisons and other places of detention live in close proximity with one another, which is likely to result in a heightened risk of person-to-person and droplet transmission of pathogens like COVID-19. In addition to demographic characteristics, people in prisons typically have a greater underlying burden of disease and worse health conditions than the general population, and frequently face greater exposure to risks such as smoking, poor hygiene and weak immune defence due to stress, poor nutrition, or prevalence of coexisting diseases, such as bloodborne viruses, tuberculosis and drug use disorders.
The COVID-19 outbreak, which was first detected in Wuhan, China, in December 2019, has been evolving rapidly. On 30 January 2020, the WHO Director-General declared that the current outbreak constituted a public health emergency of international concern, and on 12 March 2020 the COVID-19 outbreak was declared a pandemic.4
In these circumstances, prevention of importation of the virus into prisons and other places of detention is an essential element in avoiding or minimizing the occurrence of infection and of serious outbreaks in these settings and beyond.
Depending on the COVID-19 situation of the specific country, the risk of introducing COVID-19 into prisons and other places of detention may vary. In areas with no local virus circulation, the risk of virus introduction into closed settings may be associated with prison staff or newly admitted individuals who have recently stayed in affected countries or areas or who have been in contact with people returning from affected countries or areas. However, as several countries in Europe are now experiencing widespread sustained community transmission, the risk of transmission has substantially increased.
In all countries, the fundamental approach to be followed is prevention of introduction of the infectious agent into prisons or other places of detention, limiting the spread within the prison, and reducing the possibility of spread from the prison to the outside community. This will be more challenging in countries with more intense transmission.
Prisons and other places of detention are enclosed environments where people (including staff) live in close proximity. Every country has a responsibility to increase their level of preparedness, alert and response to identify, manage and care for new cases of COVID-19. Countries should prepare to respond to different public health scenarios, recognizing that there is no one-size-fits-all approach to managing cases and outbreaks of COVID-19. Four transmission scenarios that could be experienced by countries at the subnational level have been defined for COVID-19, and countries should therefore adjust and tailor their approach to the local context.5
4 WHO Director-General’s opening remarks at the mission briefing on COVID-19 (12 March 2020). Geneva: World Health Organization; 2020 (https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mission-briefing-on-covid-19---12-march-2020).
5 Critical preparedness, readiness and response actions for COVID-19: interim guidance (16 March 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/critical-preparedness-readiness-and-response-actions-for-covid-19).

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3. PLANNING PRINCIPLES AND HUMAN RIGHTS CONSIDERATIONS 3
Contingency planning is essential in ensuring an adequate health response and maintaining secure, safe and humane detention settings. Generally, plans are available for local, short-lived emergency and resilience actions. However, the evolving nature of infectious outbreaks of epidemic or pandemic proportions, locally, nationally and globally, go beyond such plans, having a potential impact on security, the wider judicial system and, in extreme cases, civil order.
In addition, business continuity plans should be in place for ensuring the security and safety functions inherently associated with prisons and other places of detention.
It is of paramount importance to work in partnership across public health agencies, health-care services and places of detention, bringing together community services and prison/detention services.
The human rights framework provides guiding principles in determining the response to the outbreak of COVID-19. The rights of all affected people must be upheld, and all public health measures must be carried out without discrimination of any kind. People in prisons and other places of detention are not only likely to be more vulnerable to infection with COVID-19, they are also especially vulnerable to human rights violations. For this reason, WHO reiterates important principles that must be respected in the response to COVID-19 in prisons and other places of detention, which are firmly grounded in human rights law as well as the international standards and norms in crime prevention and criminal justice:6
• The provision of health care for people in prisons and other places of detention is a State responsibility. • People in prisons and other places of detention should enjoy the same standards of health care that are
available in the outside community, without discrimination on the grounds of their legal status. • Adequate measures should be in place to ensure a gender-responsive approach in addressing the
COVID-19 emergency in prisons and other places of detention. • Prisons and other detention authorities need to ensure that the human rights of those in their custody
are respected, that people are not cut off from the outside world, and – most importantly – that they have access to information and adequate healthcare provision.7
6 Cf. CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4) (https://www.refworld.org/pdfid/4538838d0.pdf); United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). United Nations General Assembly Resolution A/RES/70/175, adopted 17 December 2015 (https://undocs.org/A/ RES/70/175); High Commissioner updates the Human Rights Council on human rights concerns, and progress, across the world. Human Rights Council 43rd Session, Item 2, Geneva, 27 February 2020. United Nations Human Rights Office of the High Commissioner (https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=25621&LangID=E); Advice from the SPT [Subcommittee on Prevention of Torture] to the UK NPM [National Preventive Mechanism] regarding compulsory quarantine for Coronavirus (https://s3-eu-west-2. amazonaws.com/npm-prod-storage-19n0nag2nk8xk/uploads/2020/02/2020.02.25-Annexed-Advice.pdf).
7 Coronavirus: healthcare and human rights of people in prison. London: Penal Reform International; 2020 (https://www.penalreform.org/resource/coronavirus-healthcare-and-human-rights-of-people-in).

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4

• Enhanced consideration should be given to resorting to non-custodial measures at all stages of the

administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing

stages. Priority should be given to non-custodial measures for alleged offenders and prisoners with

low-risk profiles and caring responsibilities, with preference given to pregnant women and women with

dependent children.

• Similarly, refined allocation procedures should be considered that would allow prisoners at highest risk to be separated from others in the most effective and least disruptive manner possible and that would permit limited single accommodation to remain available to the most vulnerable.

• Upon admission to prisons and other places of detention, all individuals should be screened for fever and lower respiratory tract symptoms; particular attention should be paid to persons with contagious diseases. If they have symptoms compatible with COVID-19, or if they have a prior COVID-19 diagnosis and are still symptomatic, they should be put into medical isolation until there can be further medical evaluation and testing.

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• The psychological and behavioural reactions of prisoners or those detained in other settings are likely

5

to differ from those of people who observe physical distancing in the community; consideration should

therefore be given to the increased need for emotional and psychological support, for transparent

awareness-raising and information-sharing on the disease, and for assurances that continued contact

with family and relatives will be upheld.

• Adequate measures should be in place to prevent stigmatization or marginalization of individuals or groups who are considered to be potential carriers of viruses.

• Any decision to place people in prisons and other places of detention in conditions of medical isolation should always be based on medical necessity as a result of a clinical decision and subject to authorization by law or by the regulation of the competent administrative authority.

• People subjected to isolation for reasons of public health protection, in the context of prisons and other places of detention, should be informed of the reason for being placed in isolation, and given the possibility to have a third party notified.

• Adequate measures should be in place to protect persons in isolation from any form of ill treatment and to facilitate human contact as appropriate and possible in the given circumstances (e.g. by audiovisual means of communication).

• The COVID-19 outbreak must not be used as a justification for undermining adherence to all fundamental safeguards incorporated in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) including, but not limited to, the requirement that restrictions must never amount to torture or other cruel, inhuman or degrading treatment or punishment; the prohibition of prolonged solitary confinement (i.e. in excess of 15 consecutive days); the requirement that clinical decisions may only be taken by health-care professionals and must not be ignored or overruled by non-medical prison staff; and that while the means of family contact may be restricted in exceptional circumstances for a limited time period, it must never be prohibited altogether.8

• The COVID-19 outbreak must not be used as a justification for objecting to external inspection of prisons and other places of detention by independent international or national bodies whose mandate is to prevent torture and other cruel, inhuman or degrading treatment or punishment; such bodies include national preventive mechanisms under the Optional Protocol to the Convention against Torture,9 the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,10 and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.11

• Even in the circumstances of the COVID-19 outbreak, bodies of inspection in the above sense should have access to all people deprived of their liberty in prisons and other places of detention, including to persons in isolation, in accordance with the provisions of the respective body’s mandate.

8 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). United Nations General Assembly Resolution A/RES/70/175, adopted 17 December 2015 (https://undocs.org/A/RES/70/175).
9 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. United Nations General Assembly Resolution A/RES/57/199, adopted 18 December 2002 (https://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx).
10 Optional Protocol to the Convention against Torture (OPCAT) Subcommittee on Prevention of Torture. The SPT in Brief (https://www.ohchr.org/EN/HRBodies/OPCAT/Pages/Brief.aspx).
11 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [website]. Strasbourg: Council of Europe (https://www.coe.int/en/web/cpt).

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6
4. SCOPE AND OBJECTIVES
4.1 Scope
This document is based on the international standards and norms in crime prevention and criminal justice related to prison management and non-custodial measures as well as international guidance on prison health, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),8 the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules),12 the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules),13 the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules),14 and WHO guidance on Prisons and health (2014).15 The document aims to assist countries in developing specific plans and/or consolidating further action for prisons and other places of detention in response to the international COVID-19 outbreak, with consideration of preparedness plans, prevention and control strategies, and contingency plans to interface with the wider health and emergency planning system.
4.2 Objectives
1. To guide design and implementation of adequate preparedness plans for prisons and other detention settings to deal with the COVID-19 outbreak situation in such a way as to: → protect the health and well-being of people detained in prisons and other closed settings, those who work there (custodial, health-care and other staff), and people who visit prisons and other places of detention (legal visitors, family and friends of prisoners, etc.); → support the continued safe operation of prisons and other detention settings; → reduce the risk of outbreaks which could place a considerable demand on health-care services in prisons and in the community; → reduce the likelihood that COVID-19 will spread within prisons and other places of detention and from such settings into the community; → ensure the needs of prisons and other detention settings are considered in national and local health and emergency planning.
12 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders. United Nations General Assembly Resolution A/RES/65/229, adopted 21 December 2010 (https://www.unodc.org/documents/justice-and-prison-reform/crimeprevention/UN_Rules_Treatment_Women_Prisoners_Bangkok_Rules.pdf).
13 Standard Minimum Rules for the Administration of Juvenile Justice. United Nations General Assembly Resolution A/RES/40/33, adopted 29 November 1985 (https://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf).
14 United Nations Standard Minimum Rules for Non-custodial Measures. United Nations General Assembly Resolution A/RES/45/110, adopted 14 December 1990 (https://www.ohchr.org/Documents/ProfessionalInterest/tokyorules.pdf).
15 Prisons and health. Copenhagen: WHO Regional Office for Europe; 2014 (http://www.euro.who.int/__data/assets/pdf_file/0009/99018/E90174.pdf).

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2. To present effective preventive and response mechanisms for:

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→ preventing the introduction of COVID-19 into prisons and other places of detention; → preventing the transmission of COVID-19 in prisons and other places of detention; → preventing the spread of COVID-19 from prisons and other closed settings to the community.

3. To outline an appropriate approach to dovetailing the prison health system and the national and local health and emergency planning system for:

→ preventive measures, including physical distancing and hand hygiene facilities; → disease surveillance; → identification and diagnosis, including contact tracing; → treatment and/or referral of COVID-19 cases requiring specialized and intensive care; → wider system impacts (including impact of other measures on workforce, e.g. need for home isolation,
etc.).

5. TARGET AUDIENCE
This guidance is intended to assist health-care and custodial staff working in prisons and other places of detention to coordinate public health action in such settings; it provides information on:
• the novel COVID-19 virus; • how to help prevent spread of COVID-19;16 • what to do if a person in prison/other place of detention or a staff member with suspected or confirmed
COVID-19 infection is identified; • what advice to give to people in prison or in another place of detention and their family members, or to
staff members, travelling from affected areas within the last 14 days.
The information given here will also be useful for prison authorities, public health authorities and policymakers, prison governors and managers, health-care professionals working in prison settings, detention centre employees, people in detention, and the social contacts of people in detention.
The following large, institutional, residential establishments are included within the definition of places of detention used in this guidance:
• prisons (public and privately managed) • immigration detention settings • the children and young people’s detention estate.

16 This applies to respiratory infections that are transmitted mainly via droplets. For aerosol-transmitted diseases such as tuberculosis, refer to: WHO guidelines on tuberculosis infection prevention and control. Geneva: World Health Organization; 2019 (https://www.who.int/tb/publications/2019/guidelines-tuberculosis-infection-prevention-2019/en).

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8 6. GENERAL APPROACH
Controlling the spread of infection in prisons and other places of detention is essential to preventing outbreaks of COVID-19 in such settings, protecting the health and well-being of all those who live and work in them and those who visit them, and protecting the outside community. Establishing such control is dependent on the coordinated efforts of health-care and custodial staff, working with local and national public health agencies and with justice and interior ministries and their local counterparts, in applying the general approach summarized below.
1. Actions need to be taken to enable and support coordinated, collaborative efforts across organizations to achieve IPC, following national guidance. Such actions should be commensurate with the level of emergency at the time to avoid panic and to ensure implementation of the most appropriate response at the appropriate time.
2. Joint planning → Custodial/detention staff should work together with health-care teams in prisons and other places of detention, following existing national protocols and country arrangements, to enable identification of suspected cases among employees and their subsequent management in accordance with national guidelines. → Custodial/detention staff should work together with health-care teams in prisons and other places of detention to enable identification of suspected cases among prisoners/detainees, their subsequent isolation in single accommodation and a subsequent clinical assessment.
3. Risk assessment/risk management → Screening at point of entry to prison should be available: health-care and public health teams should undertake a risk assessment of all people entering the prison, irrespective of whether or not there are suspected cases in the community; information should be collected on any history of cough and/or shortness of breath, patients’ recent travel history and possible contact with confirmed cases in the last 14 days. → Persons checked should include prisoners/detainees, visitors and prison staff. → Clear messaging is important so that staff with recent travel history or coming from affected areas who develop COVID-19 symptoms can home-isolate and managers can provide a high level of vigilance and support of their staff. Advice to visitors should also be provided well in advance of their attending the prisons/other detention facilities so that those who have to travel are not disadvantaged. Those who are symptomatic should be excluded from visiting. → For asymptomatic visitors with recent travel history or coming from affected areas, there should be protocols in place to permit entry (e.g. for legal advisers), but additional measures, such as noncontact visits, should be considered. → Decisions to limit or restrict visits need to consider the particular impact on the mental well-being of prisoners and the increased levels of anxiety that separation from children and the outside world may cause. → A detailed daily registry of people moving in and out of the prison should be maintained.

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→ Prison/detention management should consider implementing measures to limit the mobility of

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people within the prison/detention system and/or to limit access of non-essential staff and visitors to

prisons and other places of detention, depending on the level of risk in the specific country/area. The

psychological impact of these measures needs to be considered and mitigated as much as possible,

and basic emotional and practical support for affected people in prison should be available.17

→ Prison/detention management should increase the level of information on COVID-19 proactively

shared with people in detention. Restrictions, including a limitation of visitors, need to be carefully

explained in advance and alternative measures to provide contact with family/friends, e.g. phone or

Skype calls, should be introduced.

4. Referral system and clinical management → In the context of the current COVID-19 outbreak, the containment strategy includes the rapid identification of laboratory-confirmed cases, and their isolation and management either on site or in a medical facility. For contacts of laboratory-confirmed cases, WHO recommends that such persons be quarantined for 14 days from the last time they were exposed to a COVID-19 patient.18 → Health-care teams, using recommended personal protective equipment (PPE) including eye protection (face shield or goggles), gloves, mask and gown, should ensure that appropriate biological samples are taken, on advice from their public health agency, from any suspected cases and sent for analysis to local microbiology services as per local protocols, in a timely manner and in compliance with clinical and information governance procedures. PPE stocks should be maintained and kept secure to ensure their availability under the indicated circumstances. → Prison authorities should be informed and made aware of the hospitals to which they can transfer those requiring admission (respiratory support and/or intensive care units). Appropriate actions need to be taken for any confirmed cases, including transfer to specialist facilities for respiratory isolation and treatment, as required; appropriate escorts should be used and advice on safe transfers followed. However, consideration should be given to protocols that can manage the patient on site with clear criteria for transfer to hospital, as unnecessary transport creates risk for both transport staff and the receiving hospital. → Environmental and engineering controls intended to reduce the spread of pathogens and contamination of surfaces and inanimate objects should be in place; this should include provision of adequate space between people,19 adequate air exchange, and routine disinfection of the environment (preferably at least once daily). → Consideration should be given to measures such as distributing food in rooms/cells instead of a common canteen; or splitting out-of-cell time, which could be divided by wing/unit to avoid concentration of prisoners/staff even in open spaces. With these caveats, access of prisoners to the open air should be maintained and not fall below a minimum of one hour per day.

5. Prison/detention management and health-care staff should work alongside local public health agencies to implement the IPC recommendations described in this document; at all times, they must balance public health risk against any operational pressures on prisons and other places of detention and the wider secure and detained estate.

17 Psychological first aid: guide for field workers. Geneva: World Health Organization; 2011 (https://www.who.int/mental_health/publications/guide_field_workers/en). 18 Considerations for quarantine of individuals in the context of coronavirus disease (COVID-19): interim guidance (29 February 2020). Geneva: World Health Organization; 2020
(https://www.who.int/publications-detail/considerations-for-quarantine-of-individuals-in-the-context-of-containment-for-coronavirus-disease-(covid-19)). 19 A minimum space of 1 metre is recommended.

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10 7. COVID-19 VIRUS: PATHOGEN CHARACTERISTICS, SIGNS AND SYMPTOMS, TRANSMISSION
7.1 Pathogen characteristics
Coronaviruses are a large family of viruses found in both animals and humans. Some infect people and are known to cause illnesses ranging from the common cold to more severe diseases, such as severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS). A novel coronavirus is a new strain of coronavirus that has not previously been identified in humans. The latest novel coronavirus, now called COVID-19 virus, had not been detected before the outbreak reported in Wuhan, China, in December 2019. So far, the main clinical signs and symptoms reported in people during this outbreak include fever, coughing, difficulty in breathing, and chest radiographs showing bilateral lung infiltrates.
Although the current outbreak of COVID-19 is still evolving, infection may present with mild, moderate or severe illness and can be passed from human to human, primarily (as in other respiratory viruses) by droplet spread. While about 80% of cases manifest as a mild illness (i.e. non-pneumonia or mild pneumonia), approximately 20% progress to a more severe illness, with 6% requiring specialist medical care, including mechanical ventilation. Situation reports on the outbreak, updated daily, are available on the WHO website.20
Most estimates of the incubation period of COVID-19 range from 1 to 14 days, with a median of 5–6 days.21 This means that if a person remains well 14 days after exposure (i.e. contact with an infected person), they may not have been infected. However, these estimates may be updated as more data become available.
7.2 Signs and symptoms of COVID-19
The most common symptoms of COVID-19 are fever, tiredness and dry cough. Some patients may have aches and pains, nasal congestion, runny nose, sore throat or diarrhoea. These symptoms are usually mild and begin gradually. Some people become infected but do not develop any symptoms and do not feel unwell. Most people (about 80%) recover from the disease without needing special treatment. Around one out of every five people who are infected with COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems such as high blood pressure, heart problems or diabetes, are more likely to develop serious illness. Based on the latest data, about 3–4% of reported cases globally have died, but mortality varies according to location, age and existence of underlying conditions.22 People with fever, cough and difficulty breathing should seek medical attention.23
7.3 Transmission of COVID-19
Respiratory secretions, formed as droplets and produced when an infected person coughs, sneezes or talks, contain the virus and are the main means of transmission.
20 Coronavirus disease (COVID-19) situation reports. Geneva: World Health Organization; 2020 (https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports).
21 Coronavirus disease 2019 (COVID-19): situation report 30. 19 February 2020. Geneva: World Health Organization; 2020 (https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200219-sitrep-30-covid-19.pdf?sfvrsn=3346b04f_2).
22 WHO Director-General’s opening remarks at the media briefing on COVID-19. 3 March 2020. Geneva: World Health Organization; 2020 (https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---3-march-2020).
23 Q&A on coronaviruses (COVID-19). 23 February 2020. Geneva: World Health Organization; 2020 (https://www.who.int/news-room/q-a-detail/q-a-coronaviruses).

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There are two main routes by which people can spread COVID-19: • infection can be spread to people who are nearby (within 1 metre) by breathing in droplets coughed out or exhaled by a person with the COVID-19 virus; or • people may become infected by touching contaminated surfaces or objects (fomites) and then touching their eyes, nose or mouth (e.g. a person may touch a doorknob or shake hands and then touch their own face). This is why environmental disinfection is so important.
According to current evidence, transmission may start just before symptoms become visible. However, many people infected with COVID-19 experience only mild symptoms. This is particularly true at the early stages of the disease. It is therefore possible to catch COVID-19 from someone who has, for example, just a mild cough and does not feel ill. WHO is assessing ongoing research on the period of transmission of COVID-19 and will continue to share updated findings.
7.4 How long can the virus survive on surfaces?
How long any respiratory virus survives will depend on a number of factors, including: • the type of surface the virus is on • whether it is exposed to sunlight • differences in temperature and humidity • exposure to cleaning products.
Under most circumstances, the amount of infectious virus on any contaminated surface is likely to have decreased significantly within 48 hours. Once such viruses are transferred to hands, they survive for very short lengths of time. Regular cleaning of hands and frequently touched hard surfaces with disinfectants will therefore help to reduce the risk of infection.

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PREPAREDNESS, PREVENTION AND CONTROL OF COVID-19 IN PRISONS AND OTHER PLACES OF DETENTION
12 8. PREPAREDNESS, CONTINGENCY PLANNING AND LEVEL OF RISK
To manage a COVID-19 outbreak, there need to be effective planning and robust collaborative arrangements between the sectors (health and justice or interior, as applicable) that have responsibility for the health and well-being of people in prisons and other places of detention. Such collaboration will be critical in ensuring a sustainable health-care delivery system within prisons and places of detention.
Important steps in setting up such collaborative planning include the following:
• Appropriate contingency plans,24 including checklists,25 should be established to help prison and detention systems to self-assess and improve their preparedness for responding to COVID-19.
• Close collaboration/direct links with local and national public health authorities and other relevant agencies (e.g. local crisis units, civil protection) should be established; regular contact should be maintained throughout the planning period to share information, risk assessments and plans.
• A comprehensive risk assessment should be undertaken at the beginning of the planning phase and reviewed regularly; it should have input from (or be led by) the public health authority and include an up-to-date evaluation of the epidemiological situation. It is crucial to identify the different levels of risk and what impact they may have on the prison system and other places of detention (e.g. imported cases in the country; local but circumscribed circulation in the country; local circulation, including in the area where the prison institution is located; circulation within the prison system).
• Action plans in a given country/custodial institution should be developed to mitigate all risks identified in the assessment. Some actions will be the responsibility of the national public health authority to deliver; some will be the responsibility of the local health service provider; and prisons and other places of detention will be responsible for others. Each action plan should specify who is responsible for delivering a particular action, the timescale for delivery, and how and by whom delivery will be ensured. Action plans should include:26 → integration with national emergency planning and response plans for infectious diseases; → command and control arrangements to facilitate rapid communication of information and efficient situation analyses and decision-making; → disease surveillance and detection (for example, who will be screened for COVID-19 symptoms? Will there be an initial screening for symptoms for all on entry (staff/visitors)? How will the disease be diagnosed and confirmed? How will cases and contacts of confirmed cases be managed?); → case management (for example, how will suspected cases of COVID-19 within the detained population be treated? Is there an appropriate place for rapid health assessment and isolation, in the event of detecting a potential COVID-19 case? Can units to house suspected cases or contacts be created? Is there a mechanism for safely transporting ill travellers to designated hospitals, including identification of adequate ambulance services? What response will be available in the event of
24 Multi-agency contingency plan for the management of outbreaks of communicable diseases or other health protection incidents in prisons and other places of detention in England. Second edition. London: Public Health England; 2017 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/585671/ multi_agency_prison_outbreak_plan.pdf).
25 Correctional facilities pandemic influenza planning checklist. Atlanta (GA): Centers for Disease Control and Prevention; 2007 (https://www.cdc.gov/flu/pandemic-resources/pdf/correctionchecklist.pdf).
26 Adapted from: Key planning recommendations for mass gatherings in the context of the current COVID-19 outbreak: interim guidance (14 February 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/key-planning-recommendations-for-mass-gatherings-in-the-context-of-the-current-covid-19-outbreak).

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a health-care emergency involving people in prisons and other places of detention? Are there

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standard operating procedures in place for environmental cleaning and disinfection, including for

linens and utensils?);

→ staffing contingency planning with a special focus on (a) staff availability and business continuity,

including local minimum service (e.g. essential medications, diabetic checks, wound dressings,

etc.); and (b) health-care needs and provision – discuss the possibility/feasibility of providing care

within prison versus the need to transfer patients to community health-care services for specialized/

intensive care, as well as the expected impact on custodial staff contingency planning.

An essential element to be carefully considered in any preparedness plan for respiratory infectious diseases such as COVID-19 is availability and supply of essential supplies, including PPE and products for hand hygiene and environmental sanitation and disinfection. It is therefore recommended that prison governors, in collaboration with health-care professionals in prisons and other places of detention, assess the need for PPE and other essential supplies in order to ensure continuity of provision and immediate availability. It should be noted that, in order to avoid inappropriate use and misuse of PPE,27 staff and people in prison should be adequately trained (for further information on training, see section 9 below). In some countries, the proportion of the population in detention that meets the criteria for influenza vaccination has been used as a basic proxy measure of the potential demand on health-care services in the case of COVID-19 outbreak in detention settings.

Given the possibility that some common disinfectants, such as those containing alcohol, may be misused, soap and water, together with personal towels, should be considered as a first option for hand hygiene. These should be supplied in rooms/cells night and day. Chlorine-based gels may be used by prison guards and by people in prison or in other places of detention in common spaces and/or if soap and water are not available. In the case of environmental disinfection, however, it is necessary to ensure that chlorine-based products are kept locked up when not being used by service providers.

27 Rational use of personal protective equipment for coronavirus disease 2019 (COVID-19): interim guidance (27 February 2020). Geneva: World Health Organization; 2020 (https://apps.who.int/iris/bitstream/handle/10665/331215/WHO-2019-nCov-IPCPPE_use-2020.1-eng.pdf).

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14 9. TRAINING
Training of staff is a key element of any preparedness plan for prisons and other places of detention. Training activities should be appropriately planned and targeted towards custodial and health-care staff operating in prison settings. Such activities should, at a minimum, cover the following areas:
• basic disease knowledge, including pathogen, transmission route, signs and clinical disease progression • hand hygiene practice and respiratory etiquette • appropriate use of, and requirements for, PPE • environmental prevention measures, including cleaning and disinfection.
In response to the COVID-19 outbreak, WHO has developed several resources that may be useful in prisons and other places of detention.
• Online training courses on IPC and clinical management of severe acute respiratory infection (SARI) are available, free of charge, from OpenWHO, WHO’s web-based knowledge platform. These basic courses give a general introduction to COVID-19 and emerging respiratory viruses; they are intended for public health professionals, incident managers and personnel working for the United Nations, international organizations and nongovernmental organizations.28
• A risk communication package for health-care facilities provides health-care workers and health-care facility management with the information, procedures and tools required to work safely and effectively. The package contains a series of simplified messages and reminders based on WHO’s more in-depth technical guidance on IPC in health-care facilities in the context of COVID-19 and can be adapted to local context.29
• In addition, there is a range of technical guidance covering many topics, such as case management, operational support and logistics advice on use of masks.30
Finally, before embarking on any initiative, it is absolutely essential to engage the prison population in widespread information and awareness-raising activities, so that people in prison/detention and visitors are informed in advance and understand the procedures to be adopted, why they are necessary, and how they are to be carried out. It is especially important that any potential restrictive measures are explained and their temporary nature emphasized.
Regrettably, as a consequence of stigma or fear, some health-care workers responding to COVID-19 in places of detention may experience avoidance by their family or community. This can make an already challenging situation far more difficult. Health-care personnel should be advised to stay connected with loved ones and have access to mental health and psychosocial support.
28 Emerging respiratory viruses, including COVID-19: methods for detection, prevention, response and control [OpenWHO online course]. Geneva: World Health Organization; 2020 (https://openwho.org/courses/introduction-to-ncov).
29 The COVID-19 risk communication package for healthcare facilities. Manila: WHO Regional Office for the Western Pacific; 2020 (https://iris.wpro.who.int/handle/10665.1/14482). 30 Country and technical guidance: coronavirus disease (COVID-19) [resource portal]. Geneva: World Health Organization (https://www.who.int/emergencies/diseases/novel-
coronavirus-2019/technical-guidance).

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10. RISK COMMUNICATION

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In an event such as the COVID-19 outbreak, it is crucial that there is good coordination between the teams at national and subnational levels involved in risk communication. Close contacts must be established to ensure rapid clearance of timely and transparent communication messaging and materials in such crisis situations.

Key messages for people in prison and other places of detention, custodial staff, health-care providers and visitors must be coordinated and consistent. To address language barriers, translation or visual material may been needed. Information resources for custodial and health-care staff, visitors, vendors and detained persons, such as short information sheets, flyers, posters, internal videos and any other means of communication, should be developed and placed in prison common areas and in areas designated for legal visits and family visits.

Consideration should be given to how messages about risk can be delivered quickly; this should include:
(1) an overall assessment of the local risk (community risk and risk within the prison); (2) advice on preventive measures, especially hand hygiene practices and respiratory etiquette; (3) advice on what measures to adopt if symptoms develop; (4) information about disease signs and symptoms, including warning signs of severe disease that require
immediate medical attention; (5) advice on self-monitoring for symptoms and signs for those travelling from or living in affected areas,
including checking their temperature; (6) advice about how to access local health care if necessary, including how to do so without creating a risk
to health-care workers; (7) information that wearing a face mask is recommended for people who have respiratory symptoms (e.g.
a cough); it is not recommended for healthy people.31

WHO’s advice for the public about COVID-19, including information about the myths that surround it, may also be consulted.32,33

31 Advice on the use of masks in the community, during home care and in healthcare settings in the context of the novel coronavirus (2019-nCoV) outbreak. 29 January 2020. Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/advice-on-the-use-of-masks-in-the-community-during-home-care-and-in-healthcaresettings-in-the-context-of-the-novel-coronavirus-(2019-ncov)-outbreak).
32 Coronavirus disease (COVID-19) advice for the public [website/portal]. Geneva: World Health Organization; 2019 (https://www.who.int/emergencies/diseases/novelcoronavirus-2019/advice-for-public).
33 Coronavirus disease (COVID-19) advice for the public: myth busters [website]. Geneva: World Health Organization; 2019 (https://www.who.int/emergencies/diseases/novelcoronavirus-2019/advice-for-public/myth-busters).

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11. IMPORTANT DEFINITIONS: SUSPECT CASE, PROBABLE CASE, CONFIRMED CASE, CONTACT, CASE REPORTING
WHO guidance for global surveillance of COVID-19 disease should be consulted for updated definitions. The WHO case definitions given below are based on information available as of 27 February 2020 and are being revised as new information accumulates.34 Countries may need to adapt these case definitions depending on their own epidemiological situation.
34 Global surveillance for human infection with coronavirus disease (COVID-19): interim guidance (27 February 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/global-surveillance-for-human-infection-with-novel-coronavirus-(2019-ncov)).

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11.1 Definition of a suspect case

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A suspect case is:

(A) a patient with acute respiratory illness (fever and at least one sign/symptom of respiratory disease, e.g. cough, shortness of breath) AND no other aetiology that fully explains the clinical presentation AND a history of travel to or residence in a country/area or territory reporting local transmission of COVID-19 during the 14 days prior to onset of symptoms;35 OR
(B) a patient with any acute respiratory illness AND who has been in contact with a probable or confirmed COVID-19 case (see 11.2 and 11.3 below) in the last 14 days prior to onset of symptoms; OR
(C) a patient with severe acute respiratory infection (fever and at least one sign/symptom of respiratory disease, e.g. cough, shortness of breath) AND who requires hospitalization AND who has no other aetiology that fully explains the clinical presentation.

If it is determined that there is a suspect case of COVID-19, the local prison outbreak management plan should be activated. The suspect case should be immediately instructed to wear a medical mask and follow respiratory etiquette and hand hygiene practices. IPC measures, such as medical isolation, should be applied.

In this regard, it is recommended that, within each prison and other place of detention, according to the indications of health-care staff on duty and relevant national/international guidelines, a space is identified where suspect cases or confirmed cases not requiring hospitalization can be placed in medical isolation.34,36 The creation of housing units may also be considered, as not everyone who is a suspect case, a probable case or a contact requires hospitalization.

11.2 Definition of a probable case
A probable case is a suspect case for whom testing for COVID-19 is inconclusive (that is, if the result of the test reported by the laboratory is inconclusive).

11.3 Definition of a confirmed case
A confirmed case is a patient with laboratory confirmation of COVID-19 infection, irrespective of clinical signs and symptoms. Laboratory confirmation needs to be made according to an appropriate method.37

11.4 Definition of a contact
A contact is a person who is involved in any of the following:
• providing direct care without proper PPE for a COVID-19 patient; • staying in the same closed environment (e.g. a detention room) as a COVID-19 patient; • travelling together in close proximity (within 1 metre) with a COVID-19 patient in any kind of conveyance
within a 14‐day period after the onset of symptoms in the case under consideration.

35 For update on latest situation refer to: Coronavirus disease (COVID-19) situation reports. Geneva: World Health Organization; 2020 (https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports).
36 Infection prevention and control during health care when novel coronavirus (nCoV) infection is suspected: interim guidance (25 January 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/infection-prevention-and-control-during-health-care-when-novel-coronavirus-(ncov)-infection-issuspected-20200125).
37 Laboratory testing for coronavirus disease 2019 (COVID-19) in suspected human cases: interim guidance (2 March 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/laboratory-testing-for-2019-novel-coronavirus-in-suspected-human-cases-20200117).

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Monitoring of contacts of suspect, probable and confirmed cases

• Contacts should be monitored for 14 days from the last unprotected contact.
• External contacts should self-limit travel and movements. In prison settings, monitoring should be done by prison health-care or custodial staff with regular visits to see if symptoms have developed (this is important as people in prison may have a disincentive to admit to developing symptoms as they could be put in isolation).
• Any contact who becomes ill and meets the case definition becomes a suspect case and should be tested.
• Any newly identified probable or confirmed cases should have their own contacts identified and monitored.

Contact tracing should begin immediately after a suspect case has been identified in a prison or detention facility, without waiting for the laboratory result, in order to avoid delays in implementing health measures when necessary. This should be conducted by prison health-care or custodial staff under the supervision of the competent national health authority and according to national preparedness plans. Every effort should be made to minimize exposure of the suspect case to other people and the environment and to separate contacts from others as soon as possible.38 Contacts outside the prison (visitors, etc.) should be followed up by the health authorities.

11.5 Case reporting
COVID-19 has been added to the list of notifiable diseases that doctors have a duty to report to public health authorities. COVID-19 is a high-consequence infectious disease (HCID) with outbreak potential in prisons and other detention settings; possible cases in such settings should therefore be notified straightaway to responsible public health authorities, who will then report to national and international authorities.

38 Operational considerations for managing COVID-19 cases/outbreak on board ships: interim guidance (24 February 2020). Geneva: World Health Organization; 2020 (https://apps.who.int/iris/handle/10665/331164).

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12. PREVENTION MEASURES

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There is currently no vaccine to prevent COVID-19. All staff and people in prisons and other places of detention should have comprehensive awareness of COVID-19 prevention strategies, including adherence to hand hygiene measures, respiratory etiquette (covering coughs and sneezes), physical distancing (maintaining a distance of at least 1 metre from others), being alert to signs and symptoms of COVID-19, staying away from ill people, and (in the case of staff) staying home when ill. Staff should also comply with any screening measures put in place by local authorities.

In alignment with local health authorities, a workplace protocol should be developed to determine how to manage any personnel who meet the definition of a suspected or confirmed COVID-19 case or their contacts.

12.1 Personal protection measures
It is recommended that the following general precautions for infectious respiratory diseases are taken to help prevent people (staff, visitors, vendors, detainees, etc. in prisons) from catching and spreading COVID-19:
• hands should be washed often with soap and water and dried with single-use towels; alcohol hand sanitizer containing at least 60% alcohol is also an option if available (for further guidance on hand hygiene, see section 13.1 below);
• physical distancing should be observed; • a disposable tissue should be used to cover mouth and nose when coughing or sneezing, then thrown in
a bin with a lid; • touching of eyes, nose or mouth should be avoided if hands are not clean.

If possible, wall-mounted liquid soap dispensers, paper towels and foot-operated pedal bins should be made available and accessible in key areas such as toilets, showers, gyms, canteens and other high-traffic communal areas to facilitate regular hand hygiene. Security staff should assess whether such fixtures pose a security and safety risk to people in prisons and places of detention prior to their installation.

12.2 Use of masks
It is important to create a general understanding of what measures should be taken by, and on behalf of, each person in prison when infection by COVID-19 is suspected. It is very important to train people in prison as soon as possible to understand general hygiene and ways of transmission and to make it clear that, if masks are to be used, this measure must be combined with hand hygiene and other IPC measures to prevent human-to-human transmission of COVID-19.

Patient use of a medical mask is one of the prevention measures that can be taken to limit spread of certain respiratory diseases, including COVID-19, in affected areas. However, use of a mask alone is insufficient to provide an adequate level of protection and other equally relevant measures should also be adopted.

WHO has developed guidance for home-care and health-care settings on IPC strategies for use when infection with COVID-19 is suspected.36 WHO has also issued guidance on the use of masks in the community, during home care and in health-care settings in the context of the COVID-19 outbreak.31

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Wearing medical masks when not indicated may incur unnecessary cost, cause procurement burden and

create a false sense of security that can lead to neglecting other essential measures such as hand hygiene

practices. Furthermore, using a mask incorrectly may hamper its effectiveness in reducing the risk of

transmission.27

Management of masks If medical masks are worn, appropriate use and disposal are essential to ensure that they are effective and to avoid any increase in risk of transmission associated with incorrect use and disposal. The following advice on correct use of medical masks is based on standard practice in health-care settings:31
• place mask carefully to cover mouth and nose and tie securely to minimize any gaps between face and mask;
• while in use, avoid touching the mask; • remove the mask by using an appropriate technique (i.e. do not touch the front but remove by the
headband from behind); • after removal or whenever you inadvertently touch a used mask, clean hands by using an alcohol-based
hand rub (if available) or soap and water; • replace masks with a new clean, dry mask as soon as they become damp/humid; • do not reuse single-use masks; • discard single-use masks after each use and dispose of them immediately upon removal (consider a
central place in the ward/cell block where used masks can be discarded).

Cloth (e.g. cotton or gauze) masks are not recommended under any circumstances.

12.3 Environmental measures
Environmental cleaning and disinfection procedures must be followed consistently and correctly. Cleaning with water and household detergents and with disinfectant products that are safe for use in prison settings should be used for general precautionary cleaning.

Cleaning personnel should be made aware of the facts of COVID-19 infection to ensure that they clean environmental surfaces regularly and thoroughly. They should be protected from COVID-19 infection and wear disposable gloves when cleaning or handling surfaces, clothing or linen soiled with body fluids, and should perform hand hygiene before and after removing gloves.

As the COVID-19 virus has the potential to survive in the environment for several days, premises and areas that may have been contaminated should be cleaned and disinfected before they are reused, with regular household detergent followed by disinfectant containing a diluted bleach solution (e.g. one part liquid bleach, at an original concentration of 5.25%, to 49 parts water for a final concentration of about 1000 ppm or 0.1%). For surfaces that do not tolerate bleach, 70% ethanol can be used. If bleach or ethanol cannot be used in the prison for security reasons, ensure that the disinfectant used for cleaning is able to inactivate enveloped viruses. Prison authorities may have to consult disinfectant manufacturers to ensure that their products are active against coronaviruses.

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To ensure adequate disinfection, janitorial and housekeeping personnel should take care to first clean surfaces

21

with a mix of soap and water, or a detergent. Then they should apply the disinfectant for the required contact

time, as per the manufacturer’s recommendations. The disinfectant may be rinsed off with clean water after

the contact time has elapsed.

Clothes, bedclothes, bath and hand towels, etc. can be cleaned using regular laundry soap and water or machine-washed at 60–90 °C with common laundry detergent. Waste should be treated as infectious clinical waste and handled according to local regulation. Guidance on environmental cleaning in the context of the COVID-19 outbreak is available from the European Centre for Disease Prevention and Control (ECDC);39 see also Annex 1 below.

12.4 Physical distancing measures
All staff should be alert to the enhanced risk of COVID-19 infection in people in prisons and other places of detention who have a history of potential exposure, having travelled to, transited through or lived in high-risk areas in the last 14 days.

Any detainee who has (a) travelled from or lived in an identified high-risk area,40 or (b) had contact with a known case of COVID-19, should be placed in quarantine, in single accommodation, for 14 days from the date of travel or last possible day of contact.18 If it is not possible to house the detainee in medical isolation, then detainees with similar risk factors and exposures may be housed together while they undergo quarantine. The patient should wear a medical face mask while being transferred to an isolation room. During isolation, the isolated person should be under medical observation at least twice a day, including taking body temperature and checking for symptoms of COVID-19 infection.

An assessment of any language or communication issues should be made and access to a language interpretation/translation service must be provided as soon as a possible case enters the facility so that an accurate history can be taken.

12.5 Consideration of access restriction and movement limitation
An assessment of each case and setting should be undertaken by prison staff in conjunction with the local public health agency. Advice on the management of staff or people in prison or places of detention will be based on this assessment.

A temporary suspension of on-site prison visits will need to be carefully considered in line with local risk assessments and in collaboration with public health colleagues, and should include measures to mitigate the negative impact such a measure is likely to have on the prison population. The specific and disproportionate impact on different types of prisoners, as well as on children living with their parent in prison, must be considered. Measures to restrict movement of people in and out of the detention setting, including restricting transfers within the prison/detention system and limiting access to non-essential staff and visitors, need to be

39 Interim guidance for environmental cleaning in non-healthcare facilities exposed to SARS-CoV-2. ECDC technical report. 18 February 2020. Stockholm: European Centre for Disease Prevention and Control; 2020 (https://www.ecdc.europa.eu/sites/default/files/documents/coronavirus-SARS-CoV-2-guidance-environmental-cleaning-non-healthcare-facilities.pdf).
40 Situation updates are available at: Coronavirus disease (COVID-19) situation reports. Geneva: World Health Organization; 2020 (https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports).

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considered carefully in line with appropriate risk assessments, as such restrictions will have a wider impact on

the functioning of the detention system. Measures that may be considered include, as appropriate, restriction

of family visits, reducing visitor numbers and/or duration and frequency of visits, and introduction of video

conferencing (e.g. Skype) for family members and representatives of the judicial system, such as legal advisers.

In particular:
• screening may be considered at entrance with self-reporting questionnaire to exclude those with symptoms;
• visitors who feel unwell should stay at home and not attend the establishment; • staff must stay at home and seek medical attention should they develop any relevant signs and
symptoms.

A workplace protocol for how to manage such situations, including a suspected or confirmed COVID-19 case or their contacts, should be in place.

12.6 Staff returning to work following travel to affected areas or with a history of potential exposure
Custodial/detention staff working in places of detention should consult occupational health services in their respective organization if they have travelled or live in a high-risk community/area where COVID-19 is spreading; they should also keep up to date on the latest information on the COVID-19 outbreak, available on the WHO website 40 and through the national and local public health authority, to familiarize themselves with any possible restrictions/quarantine periods in place.

Prisons should review their continuity and contingency plans and update them to ensure that they can perform critical functions with reduced numbers of personnel, in a manner that does not have a negative impact on the security of the prison.

12.7 What to do if a member of staff becomes unwell and believes they have been exposed to COVID-19
If a member of staff becomes unwell in the prison and has travelled to an affected area or lives in an area where COVID-19 is spreading, they should be removed to a location which is at least 1 metre away from other people. If possible, a room or place where they can be isolated behind a closed door, such as a staff office, should be made available. If it is possible to open a window for ventilation, do so.

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Prison health-care professionals (or the individual who is unwell) should call health services or emergency

23

services (if they are seriously ill or their life is at risk) and explain their current clinical symptoms and their

epidemiological and travel history (this may not be necessary if the prison is located in affected area). If the

person affected is not able for any reason to call a doctor themselves, then another staff member should call

on their behalf.

While the unwell individual waits for advice or an ambulance to arrive, they should remain at least 1 metre from other people, and if possible be isolated behind a closed door. They should avoid touching people, surfaces and objects, and they should be provided with a medical mask. If a medical mask is not available, they should be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze, then put the tissue in a bag and throw it in a bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.

If the unwell individual needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom, if available. This will apply only to the period of time while they wait for transport to hospital. Given the possible risk of environmental contamination, it is important to ensure that the bathroom is properly cleaned and disinfected after the suspected case has used it; the area where they were sitting should also be cleaned and disinfected.

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13. ASSESSING SUSPECTED CASES OF COVID-19 IN PEOPLE IN PRISON/DETENTION
Case identification should be performed in accordance with available national/supranational guidance for primary care and community settings. Suspected cases among people in prison may be identified by notifications received from custodial/detention staff, other prisoners/detainees, self-referral, and screening at reception, or by other means. For case definitions, see section 11 above. Depending on the local level of risk, additional procedures to assess new arrivals in prison may be needed. Measures to consider are:
• creating a dedicated screening area at the facility entrance • establishing a procedure for immediate isolation of suspected cases.
13.1 Advice on use of PPE and other standard precautions for health-care staff and custodial staff with patient-facing roles
Health-care professionals in prisons and other detention settings are most likely to work directly with patients with a possible diagnosis of COVID-19, but custodial staff and transport services may also be engaged, especially at initial presentation. This means that all staff (custodial and health-care workers) should be educated about standard precautions such as personal hygiene, basic IPC measures and how to deal with a person suspected of having COVID-19 as safely as possible to prevent the infection from spreading. IPC management includes wearing the appropriate level of PPE according to risk assessment, and ensuring safe waste management, proper linens, environmental cleaning, and sterilization of patient-care equipment. PPE for custodial staff For activities that involve close contact with a suspected or confirmed case of COVID-19, such as interviewing people at a distance of less than 1 metre, or arrest and restraint, it is advised that the minimum level of PPE that custodial/escort staff should wear is:

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• disposable gloves

25

• medical mask

• if available, a disposable full gown and disposable eye protection (e.g. face shield or goggles).

PPE for health-care staff It is advised that the minimum level of PPE for health-care staff required when dealing with a suspected or confirmed COVID-19 case is:
• medical mask • full gown • gloves • eye protection (e.g. single-use goggles or face shield) • clinical waste bags • hand hygiene supplies • general-purpose detergent and disinfectant solutions that are virucidal and have been approved for use
by the prison authorities.

Health-care staff should use respirators only for aerosol-generating procedures; for further details on use of respirators, see section 14 below and WHO guidance on PPE use.27

For all staff, PPE must be changed after each interaction with a suspected or confirmed case.

Removal of PPE PPE should be removed in an order that minimizes the potential for cross-contamination. Before leaving the room where the patient is held, gloves, gown/apron, eye protection and mask should be removed (in that order, where worn) and disposed of as clinical waste. After leaving the area, the face mask can be removed and disposed of as clinical waste in a suitable receptacle.

The correct procedure for removing PPE is as follows:
(1) peel off gloves and dispose of as clinical waste (2) perform hand hygiene, by handwashing or using alcohol gel (3) remove apron/gown by folding in on itself and place in clinical waste bin (4) remove goggles/face shield only by the headband or sides and dispose of as clinical waste (5) remove medical mask from behind and dispose of as clinical waste (6) perform hand hygiene.

Further WHO guidance, with illustrations, on putting on and taking off PPE is available online.41,42

All used PPE must be disposed of as clinical waste.

41 How to put on and take off personal protective equipment (PPE) [information sheet]. Geneva: World Health Organization; 2008 (https://www.who.int/csr/resources/publications/PPE_EN_A1sl.pdf).
42 Steps to put on personal protective equipment (PPE) [poster]. Geneva: World Health Organization (https://www.who.int/csr/disease/ebola/put_on_ppequipment.pdf).

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Hand hygiene

Scrupulous hand hygiene is essential to reduce cross-contamination. It should be noted that:

• hand hygiene involves cleansing hands either with an alcohol-based hand rub or with soap and water;

• alcohol-based hand rubs are preferred if hands are not visibly soiled;

• if an alcohol-based hand rub is used, it should be at least 60% alcohol; • always wash hands with soap and water when they are visibly soiled.

All staff should apply the “My five moments for hand hygiene” approach to cleaning their hands:
(1) before touching a patient (2) before any clean or aseptic procedure is performed (3) after exposure to body fluid (4) after touching a patient (5) after touching a patient’s surroundings.

More information on how to wash hands properly, in the form of a poster that can be adapted to the prison facility, is available on the WHO website.43

13.2 Advice for policing, border force and immigration enforcement activities
For police, border force and immigration enforcement officers, there may be situations where an individual who needs to be arrested or is in custody is identified as potentially at risk of COVID-19.44

If assistance is needed for an individual who is symptomatic and identified as a possible COVID-19 case, the person should, wherever possible, be placed in a location away from others. If there is no physically separate room, people who are not involved in providing assistance should be asked to stay away from the individual. If barriers or screens are available, they may also be used.

Appropriate IPC measures should be implemented. In activities that involve close contact with a symptomatic person who is suspected of having COVID-19 (such as interviewing at a distance of less than 1 metre, or arrest and restraint), staff should wear:
• disposable gloves • medical mask • long-sleeved gown • eye protection (e.g. face shield or goggles).

43 How to handwash? [poster]. Geneva: World Health Organization; 2009 (https://www.who.int/gpsc/5may/How_To_HandWash_Poster.pdf). 44 For further information, see: Guidance for first responders and others in close contact with symptomatic people with potential COVID-19. London: Public Health England; 2020
(https://www.gov.uk/government/publications/novel-coronavirus-2019-ncov-interim-guidance-for-first-responders/interim-guidance-for-first-responders-and-others-in-closecontact-with-symptomatic-people-with-potential-2019-ncov).

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14. CASE MANAGEMENT
Case management should be performed in accordance with available national/supranational guidance for primary care and community settings.
14.1 Clinical management of severe acute respiratory infection (SARI) when COVID-19 is suspected
WHO has issued guidance intended for clinicians involved in the clinical management and care of adult, pregnant and paediatric patients with or at risk of SARI when infection with the COVID-19 virus is suspected.45 It is not meant to replace clinical judgement or specialist consultation but rather to strengthen clinical management of these patients and to provide up-to-date guidance. Best practices for IPC, triage and optimized supportive care are included.
The WHO guidance is organized in the following sections: 1. Background 2. Screening and triage: early recognition of patients with SARI associated with COVID-19 3. Immediate implementation of appropriate IPC measures 4. Collection of specimens for laboratory diagnosis 5. Management of mild COVID-19: symptomatic treatment and monitoring 6. Management of severe COVID-19: oxygen therapy and monitoring 7. Management of severe COVID-19: treatment of coinfections 8. Management of critical COVID-19: acute respiratory distress syndrome (ARDS) 9. Management of critical illness and COVID-19: prevention of complications 10. Management of critical illness and COVID-19: septic shock 11. Adjunctive therapies for COVID-19: corticosteroids 12. Caring for pregnant women with COVID-19 13. Caring for infants and mothers with COVID-19: IPC and breastfeeding 14. Care for older persons with COVID-19 15. Clinical research and specific anti-COVID-19 treatments.
45 Clinical management of severe acute respiratory infection (SARI) when COVID-19 disease is suspected: interim guidance (13 March 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/clinical-management-of-severe-acute-respiratory-infection-when-novel-coronavirus-(ncov)-infection-is-suspected).

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14.2 Additional precautions

Patients should be placed in adequately ventilated space. If more suspected cases are detected and if

individual spaces are not available, patients suspected of being infected with COVID-19 should be grouped

together. However, all patients’ beds should be placed at least 1 metre apart whether or not they are

suspected of having COVID-19 infection.

A team of health-care workers and custodial/detention staff should be designated to care exclusively for suspected or confirmed cases to reduce the risk of transmission.

14.3 How to undertake environmental cleaning following a suspected case in a place of detention
Once a suspected case of COVID-19 has been transferred out of the prison or other place of detention to a hospital facility, the room where the patient was placed and the room where the patient was residing should not be used until appropriately decontaminated; the doors should remain shut, with windows open and any air conditioning switched off, until the rooms have been cleaned with detergent and disinfectant that is virucidal and approved for use in the prison setting. Detailed information on cleaning and disinfection is provided on the WHO website 46 and in Annex 1.

Once the cleaning process has been completed, the room can be put back in use immediately. Medical devices and equipment, laundry, food service utensils and medical waste should be managed in accordance with the medical waste policy at the facility.

A disease commodity package for COVID-19 outlines the supplies needed for surveillance, laboratory analysis, clinical management and IPC.47

14.4 Discharge of people from prisons and other places of detention
If a person who has served their sentence is an active COVID-19 case at the time of their release, or is the contact of a COVID-19 case and still within their 14-day quarantine period, the prison health authorities should ensure that the person discharged has a place to go where they can maintain quarantine, that the local authority is notified that the person has been discharged, and thus that follow-up is transferred from the prison authorities to the local authorities.
If a discharged individual is transferred to a hospital or other medical facility after their prison term is over, but they are still under quarantine/medical care for their COVID-19 infection, the receiving facility should be notified of the person’s COVID-19 status (confirmed or suspected) so that it is ready to provide proper isolation.

46 Home care for patients with suspected novel coronavirus (nCoV) infection presenting with mild symptoms and management of contacts: interim guidance (4 February 2020). Geneva: World Health Organization; 2020 (https://www.who.int/publications-detail/home-care-for-patients-with-suspected-novel-coronavirus-(ncov)-infection-presentingwith-mild-symptoms-and-management-of-contacts).
47 Disease commodity package: novel coronavirus (COVID-19). Geneva: World Health Organization; 2020 (https://www.who.int/emergencies/what-we-do/prevention-readiness/disease-commodity-packages/dcp-ncov.pdf).

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15. INFORMATION RESOURCES

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WHO general guidance on COVID-19
COVID-19 information portal: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Daily situation updates on the COVID-19 outbreak https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

Mental health and social issues
Coping with stress during the COVID-19 outbreak https://www.who.int/docs/default-source/coronaviruse/coping-with-stress.pdf?sfvrsn=9845bc3a_2
Helping children cope with stress during the COVID-19 outbreak
https://www.who.int/docs/default-source/coronaviruse/helping-children-cope-with-stress-print. pdf?sfvrsn=f3a063ff_2
Mental health considerations for different groups (including health workers) during the COVID-19 outbreak
https://www.who.int/docs/default-source/coronaviruse/mental-health-considerations.pdf?sfvrsn=6d3578af_10
Addressing social stigma associated with COVID-19
https://www.epi-win.com/sites/epiwin/files/content/attachments/2020-02-24/COVID19%20Stigma%20 Guide%2024022020_1.pdf
IASC briefing note on mental health and psychosocial support (MHPSS) aspects of COVID-19 https://interagencystandingcommittee.org/iasc-reference-group-mental-health-and-psychosocial-supportemergency-settings/briefing-note-about

European Centre for Disease Prevention and Control
COVID-19 information portal: https://www.ecdc.europa.eu/en/novel-coronavirus-china

United Nations Office on Drugs and Crime
Assessing compliance with the Nelson Mandela Rules: a checklist for internal inspection mechanisms (2017) https://www.unodc.org/documents/justice-and-prison-reform/17-04946_E_ebook_rev.pdf
Handbook on strategies to reduce overcrowding in prisons (2013)
https://www.unodc.org/documents/justice-and-prison-reform/Overcrowding_in_prisons_Ebook.pdf
Policy brief on HIV prevention, treatment and care in prisons and other closed settings (2013) https://www.unodc.org/documents/hiv-aids/HIV_comprehensive_package_prison_2013_eBook.pdf
Handbook on prisoners with special needs (2009) https://www.unodc.org/pdf/criminal_justice/Handbook_on_Prisoners_with_Special_Needs.pdf

Public Health England
Public Health England (PHE) – Public health in prisons and secure settings (collection of resources) https://www.gov.uk/government/collections/public-health-in-prisons
COVID-19: prisons and other prescribed places of detention https://www.gov.uk/government/publications/covid-19-prisons-and-other-prescribed-places-of-detentionguidance

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30 Robert Koch Institute
Information portal (in German) https://www.rki.de/DE/Home/homepage_node.html
National Commission on Correctional Health Care
What you need to know about COVID-19 https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-to-know-in-corrections
Penal Reform International
Briefing note on COVID-19, health care, and the human rights of people in prison https://www.penalreform.org/resource/coronavirus-healthcare-and-human-rights-of-people-in

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ANNEX 1

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ENVIRONMENTAL CLEANING FOLLOWING A SUSPECTED CASE OF

COVID-19 IN A PLACE OF DETENTION*

Infection prevention and control (IPC) measures are essential to reduce the risk of transmission of infection in prisons and other places of detention. Environmental cleaning of health-care rooms, or cells, where a suspected case has been managed is an essential intervention to control infection as well as to enable facilities to be put back into use quickly. Once a possible case has been transferred from the prison or detention setting, the room where the patient was placed should not be used, the room door should remain shut, with windows opened and the air conditioning switched off (if relevant), until it has been cleaned with detergent and disinfectant. Once this process has been completed, the room can be put back in use immediately.

Preparation
The responsible person undertaking the cleaning with detergent and disinfectant should be familiar with these processes and procedures:
• collect all cleaning equipment and clinical waste bags before entering the room • dispose of any cloths and mop heads as single-use items • perform hand hygiene, then put on a disposable plastic apron and gloves.

On entering the room
• keep the door closed with windows open to improve airflow and ventilation while using detergent and disinfection products
• bag all items that have been used for the care of the patient as clinical waste – for example, contents of the waste bin and any consumables that cannot be cleaned with detergent and disinfectant
• remove any fabric curtains or screens or bed linen and bag as infectious linen
• close any sharps containers, wiping the surfaces with either a combined detergent/disinfectant solution with a virucidal label claim, or a neutral-purpose detergent followed by disinfection with a virucidal product that has been approved for use in the facility.

Cleaning process
Use disposable cloths/paper roll/disposable mop heads to clean and disinfect all hard surfaces/floor/chairs/ door handles/reusable non-invasive care equipment/sanitary fittings in the room, following one of the two options below:
• either use a combined detergent/disinfectant solution with a virucidal label claim • or use a neutral-purpose detergent, followed by a virucidal disinfectant approved by the prison authority.

Follow manufacturer’s instructions for dilution, application and contact times for all detergents and disinfectants. Any cloths and mop heads used must be disposed of as single-use items.

* COVID-19: interim guidance for primary care (updated 25 February 2020). London: Public Health England; 2020
(https://www.gov.uk/government/publications/wn-cov-guidance-for-primary-care/wn-cov-interim-guidance-for-primary-care).

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32 Cleaning and disinfection of reusable equipment
• clean and disinfect any reusable non-invasive care equipment, such as blood pressure monitors, digital thermometers and glucometers, that are in the room prior to their removal
• clean all reusable equipment systematically from the top or furthest away point.
Carpeted flooring and soft furnishings
If carpeted floors/items cannot withstand chlorine-releasing agents, consult the manufacturer’s instructions for a suitable alternative to use, following or combined with detergent cleaning.
On leaving the room
• discard detergent/disinfectant solutions safely at disposal point • all waste from suspected contaminated areas should be removed from the room and discarded as
medical waste as per the facility guideline for medical waste • clean, dry and store reusable parts of cleaning equipment, such as mop handles • remove and discard personal protective equipment (PPE) as medical waste • perform hand hygiene.
Cleaning of communal areas
If a suspected case spent time in a communal area, then these areas should be cleaned with detergent and disinfectant (as above) as soon as practicably possible, unless there has been a blood/body fluid spill, which should be dealt with immediately. Once cleaning and disinfection have been completed, the area can be put back in use.
Decontamination of vehicles following a transfer of a possible case
Any vehicle used to transport a possible case should be cleaned and disinfected (using the methods outlined above for environmental cleaning following a possible case) as soon as possible before it is brought back into service.

The WHO Regional Office for Europe
The World Health Organization (WHO) is a specialized agency of the United Nations created in 1948 with the primary responsibility for international health matters and public health. The WHO Regional Office for Europe is one of six regional offices throughout the world, each with its own programme geared to the particular health conditions of the countries it serves.
Member States
Albania Andorra Armenia Austria Azerbaijan Belarus Belgium Bosnia and Herzegovina Bulgaria Croatia Cyprus Czechia Denmark Estonia Finland France Georgia Germany Greece Hungary Iceland Ireland Israel Italy Kazakhstan Kyrgyzstan Latvia Lithuania Luxembourg Malta Monaco Montenegro Netherlands North Macedonia Norway Poland Portugal Republic of Moldova Romania Russian Federation San Marino Serbia Slovakia Slovenia Spain Sweden Switzerland Tajikistan Turkey Turkmenistan Ukraine United Kingdom Uzbekistan

Case 1:20-cv-10617-WGY Document
World Health Organization Regional Office for Europe UN City, Marmorvej 51, DK-2100 Copenhagen Ø, Denmark Tel: +45 45 33 70 00 Fax: +45 45 33 70 01 Email: eurocontact@who.int Website: www.euro.who.int

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Exhibit E

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

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 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 following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/26/2020

cdc.gov/coronavirus

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including:
ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a
face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include 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 PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 92 of 93
Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

COVID-19 case or case contact

–







Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

25

Case 1:20-cv-10617-WGY Document 12-10 Filed 03/27/20 Page 93 of 93
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26

 
 Case 1:20-cv-10617-WGY Document 13 Filed 03/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617-WGY

PETITIONERS-PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION OR REPRESENTATIVE HABEAS ACTION
Petitioners-Plaintiffs and the proposed class, by and through their undersigned counsel, hereby respectfully move this Court for an order certifying a class pursuant to Fed. R. Civ. P. 23, or in the alternative, to certify a representative habeas class of Petitioners-Plaintiffs pursuant to United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Petitioners-Plaintiffs ask this Court to certify a class consisting of all civil immigration detainees who are now or will be held by Respondents-Defendants at the Bristol County House of Corrections and the C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts. The grounds for this motion are set forth in the Memorandum in Support of Petitioners-Plaintiffs’ Motion for Class Certification and Exhibits attached thereto and incorporated therein.1

1 Undersigned counsel did not confer under Local Rule 7.1(a)(2) because no counsel has appeared on behalf of Respondents-Defendants as of the time of filing. See Declaration of Oren Sellstrom in Support of Motion for Temporary Restraining Order.

Case 1:20-cv-10617-WGY Document 13 Filed 03/27/20 Page 2 of 3
Respectfully Submitted,
/s/ Oren Nimni Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319)
Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
B. Rey, Law Student Intern* Megan Yan, Law Student Intern*
Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
† Motion for admission pro hace vice forthcoming. * Motion for law student appearance forthcoming.
2

Case 1:20-cv-10617-WGY Document 13 Filed 03/27/20 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as nonregistered participants.
/s/ Oren Sellstrom
3

 
 Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
THOMAS HODGSON, et al.,
Respondents-Defendants.

Case No. 1:20-cv-10617 WGY

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 2 of 19 TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 5 II. PROPOSED CLASS DEFINITION ................................................................................... 9 III. PROPOSED CLASS REPRESENTATIVES ..................................................................... 9 ARGUMENT ................................................................................................................................ 10 I. The Proposed Class Meets the Requirements of Rule 23(a)............................................. 11
A. The proposed class is so numerous that joinder would be impractical................. 11 B. The proposed class representatives present issues of fact and law in
common with the class.......................................................................................... 12 C. The class representatives’ claims are typical of those of the class. ...................... 14 D. The proposed class representatives and class counsel can adequately
represent the class. ................................................................................................ 15 II. The Proposed Class Meets the Requirements of Rule 23(b) ............................................ 16 CONCLUSION............................................................................................................................. 17
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Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 3 of 19
TABLE OF AUTHORITIES
Cases
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)................................................................................................................ 10
Andrews v. Bechtel Power Corp., 780 F.3d 124 (1st Cir. 1985) ..................................................................................................... 9
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) .................................................................................................... 8
Baggett v. Ashe, 2013 U.S.Dist. LEXIS 73202 (D. Mass. May 23, 2013) .......................................................... 8
Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338 (2011)......................................................................................................... passim
Faherty v. CVS Pharmacy, Inc., 2011 U.S.Dist.LEXIS 23547 (D.Mass., March 9, 2011) .......................................................... 8
Garcia-Rubiera v. Calderon, 570 F.3d 443 (1st Cir. 2009) ..................................................................................................... 4
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).................................................................................................................. 8
George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168 (D.Mass. 2012)................................................................................................ 8
Gordon v. Johnson, 300 F.R.D. 28 (D.Mass. 2014).................................................................................................. 4
In re Credit Suisse-AOL Sec. Litig., 253 F.R.D. 17 (D.Mass. 2008).................................................................................................. 9
In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6 (1st Cir. 2008) ......................................................................................................... 7
Reid v. Donelan, 297 F.R.D. 185 (D.Mass. 2014)....................................................................................... passim
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010).................................................................................................................. 3
Torrezani v. VIP Auto Detailing, Inc., 318 F.R.D. 548 (D. Mass. 2017)............................................................................................... 5
3

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 4 of 19 Statutes 8 U.S.C. § 1226(a) ................................................................................................................. passim Rules Fed. R. Civ. P. 23 ................................................................................................................... passim
4

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 5 of 19
INTRODUCTION This action is filed on behalf of a highly vulnerable putative class: numerous individuals in civil immigration detention currently housed at Bristol County Immigration Detention Facilities, all of whom are at grave risk of contracting COVID-19 because of the life-threatening, congregate conditions under which they are confined. Common questions of both fact and law pervade this matter, and Defendants1 have acted and refused to act on grounds that are generally applicable to the class as a whole, making class certification appropriate. The requirements of Federal Rules of Civil Procedure 23(a) and (b) are amply met by the proposed class. The class is sufficiently numerous: more than 57 individuals are currently in civil immigration detention at Bristol County Immigration Detention Facilities.2 All members of the class are bound together by common questions of law and fact – most prominently, whether in the face of the lethal COVID-19 pandemic, the conditions of confinement at the Detention Facilities place the detainees’ safety and health at grave risk in a manner that amounts to unconstitutional punishment. The named Plaintiffs are proper class representatives because their claims are typical of the absent class members and because they and their counsel will adequately and vigorously represent the class. Finally, Rule 23(b)(2) is satisfied here because the Defendants have “acted or refused to act on grounds that apply generally to the class” through creating and maintaining conditions that put the class at imminent risk of contracting COVID-19, the deadly virus that is currently sweeping the globe.
1 Defendants are Thomas Hodgson, Bristol County Sheriff; Steven J. Souza, Superintendent Bristol County House of Corrections; Todd Lyons, Boston Field Office, Acting Director, Immigrations and Customs Enforcement (ICE); Chad F. Wolf, Acting Secretary, Department of Homeland Security; and Matthew T. Albence, Deputy Director and Senior Official Performing the Duties of the Director for ICE. All are sued in their official capacities. 2 The Detention Facilities consist of the Bristol County House of Corrections (BCHOC) and the C. Carlos Carreiro Immigration Detention Center (Carreiro) (collectively “Bristol County Immigration Detention Facilities” or “Detention Facilities”). At least 57 immigration detainees are being held in just one unit (Unit B) of the BCHOC.
5

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 6 of 19
The Centers for Disease Control and Prevention (CDC) advises that COVID-19 is thought to spread primarily from person-to-person, between people who are in close contact with one another (within about 6 feet), and through respiratory droplets produced when someone speaks, coughs, or sneezes, including the touch of shared surfaces.3 See Declaration of Gregg Gonsalves (“Gonsalves Decl.”), ¶ 15.4 The CDC has made clear that the only known effective measures to reduce the risk of contracting COVID-19 are social distancing and hygiene. See CDC, Coronavirus Disease (COVID-19): How to Protect Yourself, (Mar. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. (“The best way to prevent illness is to avoid being exposed to this virus.”). The calls for individuals and organizations throughout the world to adopt these measures has been uniform, see Gonsalves Decl. ¶ 13, and has led to entire nations, states, and cities being locked down, in an extraordinary and unprecedented battle to stop the spread of this deadly virus.
Medical experts and former ICE officials alike have recognized the obvious risk that is presented in congregate environments such as Bristol County Immigration Health Facilities. “‘It’s a vulnerable situation,’ John Sandweg, an acting head of ICE during the Obama administration, told CBS News. ‘You have the exact situation everyone is cautioning against. You have a bunch of people contained in a very small environment.’…‘[c]an you imagine if you get an outbreak in these detention facilities? It’s going to spread like wildfire,’ Sandweg added.”5 Dr. Gregg Gonsalves notes that detention facilities are “enclosed environments,” similar to
3 World Health Organization, Rolling updates on coronavirus disease (COVID-19) (Updated Mar. 20, 2020) https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen. 4 As of March 21, 2020 at 7:06 p.m. EST. See COVID-19 CORONAVIRUS PANDEMIC, WORLDOMETER (Mar. 21, 2020), https://www.worldometers.info/coronavirus/. 5 Id. 6 As of March 21, 2020 at 3:10p.m. EST. 4 Except as otherwise noted, all Declarations refer to Declarations filed in support of Plaintiffs’ Motion for Temporary Restraining Order, filed concurrently with this Class Certification Motion. 5 Camilo Montoya-Galvez, “Powder Kegs”: Calls Grow for ICE to Release Immigrants to Avoid Coronavirus Outbreak, CBS News (Mar. 19, 2020), https://www.cbsnews.com/news/coronavirus-ice-release-immigrantsdetention-outbreak.
6

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 7 of 19
others like cruise ships that were early sites of large COVID-19 outbreaks, but have ‘even greater risk of infectious spread than other enclosed environments because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources.” Gonsalves Decl. ¶ 16. Furthermore, according to Dr. Allen Keller, “the risk of COVID-19 infection and spread in immigration detention facilities, including Bristol County, is extremely high.” Declaration of Allen Keller, ¶ 10. The risk is exacerbated by immigration detention staff, contractors, and vendors who “are at great risk of unknowingly spreading COVID-19 infection that was acquired in the community, given the[ir] daily back and forth routines . . . and lack of available tests.” Id. ¶ 14.
In the Bristol County Immigration Detention Facilities, however, it is business as usual. Members of the proposed class – who are being held civilly, not pursuant to any criminal conviction – have pled with Defendants, in increasing frantic ways, to protect them from this deadly virus, but those pleas have fallen on deaf ears. Defendants have continued to confine detainees in close proximity, without adequate soap, disinfectant, sanitizer, toilet paper, and other daily anti-viral necessities. Declaration of Ira Alkalay (“Alkalay Dec.”), ¶ 8; see also Declaration of Julio Cesar Medeiros Neves (“Medeiros Neves Dec.”) ¶ 15; Declaration of Maria Alejandra Celimen Savino (“Celimen Savino Dec.”) ¶ 8.
Defendants’ response to the threats this lethal pandemic poses to immigrants has been unconstitutional, abysmal and haphazard. Following public outcry, on March 17, 2020, ICE issued a statement that it would modify its enforcement efforts in apparent recognition of the need for alternatives to detention to protect public health. The next day, however, in response to a lawsuit for the release of vulnerable ICE detainees in Washington state, the agency again demonstrated its failure to appreciate the threats the COVID-19 pandemic presents, stating that
7

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 8 of 19
“Plaintiffs’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative.”6
On March 19, 2020, two medical subject matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties blew the whistle to Congress, writing “regarding the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”7 On multiple occasions since at least February 25, 2020, these experts had sounded the alarm within the agency on the imminent risks to the health of immigrant detainees and the public at large presented by COVID-19 unless swift mitigation measures, including decreasing the number of immigrant detainees, are taken.
Defendant Hodgson, the Sheriff of Bristol County, issued a statement on March 19, 2020 noting that although 80% of the individuals detained at BCHOC are immunocompromised, and thus particularly vulnerable to exposure to COVID-19, he refused to take any measures to release anyone from custody.
Several recent court rulings have explained the health risks—to inmates, guards, and the outside community at large—created by large prison populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of immigrant detainee in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (ordering the release of inmate in Federal Bureau of
6 Respondents—Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020). 7 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Richto-Congress-Re.pdf (emphasis in original).
8

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 9 of 19
Prisons custody due, in part, to risk posed by COVID-19 in the facility); In the Matter of the Extradition of Alejandro Toledo Manrique, Case No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal. March 19, 2020) (ordering change to conditions of bail for an individual to postpone incarceration, in part in light of risk of vulnerability to the coronavirus) United States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020). On March 22 the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26. II. PROPOSED CLASS DEFINITION
All civil immigration detainees who are now or will be held by Respondents-Defendants at the Bristol County House of Corrections (BCHOC) and the C. Carlos Carreiro Immigration Detention Center (“Carreiro”) in North Dartmouth, Massachusetts. III. PROPOSED CLASS REPRESENTATIVES
The proposed class representatives are Maria Alejandra Celimen Savino and Julio Cesar Medeiros Neves, both of whom are currently detained at Bristol County Immigration Detention Facilities. Savino Decl. ¶ 1-3; Neves Decl. ¶ 1-2.
Mr. Neves is currently detained at BCHOC in Unit B. Neves Dec. ¶ 2. He is being held in the same cell as forty-nine other people, whose beds are close to one another and as a result cannot engage in “social distancing.” Id. ¶¶ 4-6. Bristol County House of Corrections has not given him any guidance or materials to help protect himself from COVID-19 such as hand sanitizer or disinfectant. Id. ¶¶ 7, 15. He has observed guards at BCHC with coronavirus-like symptoms, and saw one detainee who arrived to BCHC after COVID-19 pandemic was underway who was very sick and had to be taken out of the unit. Id. ¶¶ 12, 14. Mr. Neves Junio suffers from depression and anxiety, which has been exacerbated by his fear of being infected by COVID-19 in this life-threatening environment. Id. ¶¶ 2, 9, 12.
9

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 10 of 19
Maria Alejandra Celimen Savino is currently detained in Bristol County Immigration Detention Facilities, in a unit called C. Carlos Carreiro Immigration Detention Center, Alley EB. Savino Decl., ¶¶ 1-3. Her unit has eight cells of ICE detainees with 2 detainees typically in each cell. Id. ¶ 4. There are non-immigration inmates directly above her unit, with whom she shared common areas such as the bathroom and a common room where they eat, sitting side-by-side. Id. ¶¶ 7, 9. For this reason, she has not been able to engage in social distancing. Id. ¶ 11. She has not had toilet paper for one week, as the facility ran out of it and has not restocked. Id. ¶ 8. The unit is only cleaned by detainees, with no professional cleaning staff or supplies, and detainees are forced to clean surfaces and objects using only hot water. Id. ¶ 10. She has continued to see a constant stream of new detainees and people coming into the unit from the outside and is has no knowledge that any of them have been tested for COVID-19 before entering. Id. ¶ 12. She suffers from asthma since she was a child and her health will be very compromised if she is infected with COVID-19. Id. ¶ 13. She worries that she will get sick and die in detention. Id. ¶ 15. Moreover, she and her fellow detainees have not been given tools to follow proper hygiene and sanitation and have not been given any materials to help protect themselves during this epidemic. Id. ¶ 17.
ARGUMENT Petitioners seek certification of the class described above under Federal Rule of Civil Procedure 23. “By its terms, [Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). Class certification is thus appropriate where the proposed class satisfies the four requirements of Rule 23(a) – numerosity, commonality, typicality, and adequacy of representation – and at least one of the categories of Rule 23(b). These criteria are met here, where the numerous civil immigration detainees who
10

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 11 of 19
form the proposed class are all being held by one institution and uniformly placed at risk of contracting the COVID-19 virus due to their conditions of confinement.
Civil rights actions such as the instant one are particularly amenable to class treatment. Rule 23 was enacted to “facilitate the bringing of class actions in the civil-rights area.” 7A Wright & Miller, Federal Practice & Procedure §1775 (3d ed. 2018). The arguments in favor of class certification are especially strong in this context, where individual class members are unlikely to be able to pursue their claims individually. Even under typical circumstances, civil immigration detainees are hard-pressed to bring their own claims, since they are all detained, largely lack counsel, and many do not speak English. See Reid v. Donelan, 297 F.R.D. 185, 189 (D.Mass. 2014), reversed on other grounds, 819 F.3d 486 (1st Cir. 2016) (certifying class of immigration detainees because, among other things, “many do not speak English, a majority do not have counsel, and most are unlikely even to know that they are members of the proposed class”); Gordon v. Johnson, 300 F.R.D. 28, 29 (D.Mass. 2014). These difficulties are compounded even further in the current moment, when Massachusetts (like much of the rest of the world) is essentially on lock-down. Class certification is particularly appropriate here, and all the requisite elements of Rule 23 have been met. I. The Proposed Class Meets the Requirements of Rule 23(a).
A. The proposed class is so numerous that joinder would be impractical. The proposed class satisfies the requirement that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The First Circuit has recognized that this is only a “low threshold,” Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009). “[A] class size of forty or more will generally suffice in the First Circuit.” Reid, 297 F.R.D. at 189. Here, there are currently more than 57 civil immigration detainees who are housed at Bristol County Immigration Detention Facilities. Many of these detainees are unrepresented, see
11

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 12 of 19
Reid, 297 F.R.D. at 189, and lack the financial resources to bring individual claims. Torrezani v. VIP Auto Detailing, Inc., 318 F.R.D. 548, 554 (D. Mass. 2017) (class certification is favored where the Court “can reasonably infer that substantially all of the class members have limited financial resources….”).
Moreover, new detainees continue to be admitted to Bristol County Immigration Detention Facilities, rendering the current number of detainees “merely the floor for this numerosity inquiry….” Reid, 297 F.R.D. at 189. The fact that future detainees form a part of the proposed class makes joinder, already an infeasible option, that much more impracticable. Reid, 297 F.R.D. at 189.
B. The proposed class representatives present issues of fact and law in common with the class.
Rule 23(a)(2) requires that “questions of law or fact” be “common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires the identification of an issue that by its nature “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338, 350 (2011). A single common issue is sufficient to establish commonality. Id. at 359 (“We quite agree that for purposes of Rule 23(a)(2) even a single common question will do….”) (internal quotation marks, brackets, and citations omitted). For this reason, the First Circuit has recognized that, like numerosity, the commonality requirement is “a low bar….” In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 19 (1st Cir. 2008).
This case satisfies the requirement of at least “a single common question” that is shared by all members of the proposed class. Among others: Whether the conditions of confinement at Bristol County Immigration Detention Facilities, under the current conditions and in light of the
12

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 13 of 19
COVID-19 pandemic, render class members’ confinement a punishment that violates constitutional standards. All of the class members either have been, or will be, subjected to these common conditions, and a determination that Defendants’ conduct is unconstitutional will therefore “resolve an issue that is central to the validity” of each and every class member’s detention. Dukes, 564 U.S. at 350 (2011).
The fact that certain details relating to their conditions of confinement will vary between class members does not defeat commonality. Reid, 297 F.R.D. at 191 (class certification granted despite individual differences among class members, where common issues pervade). And in fact conditions experienced in the Bristol County Immigration Detention Facilities by the proposed class representatives are shared with other members of the proposed class. Since the COVID-19 epidemic began, Defendants have continued to confine detainees in close proximity, without adequate soap, toilet paper, and other daily necessities. Declaration of Ira Alkalay (“Alkalay Decl.”), ¶ 8; see also Declaration of Julio Cesar Medeiros Neves (“Medeiros Neves Decl.”) ¶ 15; Declaration of Maria Alejandra Celimen Savino (“Celimen Savino Decl.”) ¶ 8.
Defendants eat off plastic trays which have passed through the hands of three or four individuals before they eat off of them. Alkalay Dec. ¶ 5. Defendants continue to deny access to testing and medical care for Plaintiffs and other detainees: it takes days or weeks for them to get an appointment, and even longer to receive medication. Declaration of Cesar Francisco Vargas Vasquez (“Vargas Vasquez Decl.”) ¶¶ 11
Indeed, “social distancing” is impossible for all of the class members, just as it is for the proposed class representative. Gonsalves Dec. ¶ 17, Keller Decl. ¶ 8. Beds are in close proximity to each other and meals are eaten in close quarters. Keller Decl. ¶ 17; Alkalay Decl. ¶ 4. Basic hygiene protections are unavailable. Alkalay Decl. ¶ 8. While the rest of the country
13

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 14 of 19
scours grocery store shelves for Purell, class members lack even the basics of adequate soap and toilet paper. And Defendants are introducing daily new detainees into these conditions without any mandatory quarantine period. See, e.g., Alkalay Decl. ¶ 9.
As courts have repeatedly recognized, even under the more stringent standards applicable to class actions that seek damages under Rule 23(b)(3), class action treatment is appropriate despite the existence of individual differences. Tyson Foods, Inc. v. Bouaphakeo, --- U.S. ---, 136 S.Ct. 1036, 1045 (2016) (“When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.”) (internal quotation marks and citations omitted). Where as here, the commonalities are readily apparent, Rule 23 is amply satisfied.
C. The class representatives’ claims are typical of those of the class. Where commonality looks to the relationship among class members generally, typicality under Rule 23(a)(3) focuses on the relationship between the proposed class representative and the rest of the class. See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 176 (D.Mass. 2012) (citing 1 William B. Rubenstein, Newberg on Class Actions § 3:26 (5th ed. 2012)). In practice, however, the analysis of typicality and commonality “tend to merge.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). To satisfy Rule 23(a)(3), “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 156. Typicality is “‘not highly demanding’ because ‘the claims only need to share the same essential characteristics, and need not be identical.’” Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21, 24-25 (D.Mass. 2003), quoting 5 Moore’s General Practice § 23.24[4]. “For purposes
14

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 15 of 19

of demonstrating typicality, ‘[a] sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.’” In re Relafen Antitrust Litig., 231 F.R.D. 52, 69 (D.Mass. 2005), quoting In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D. Fla. 2004).
Here, the interests of the proposed class representatives and the proposed class members are aligned. Cf. Faherty v. CVS Pharmacy, Inc., 2011 U.S.Dist.LEXIS 23547, at *6 (D.Mass., March 9, 2011) (noting that the alignment need not be perfect). The proposed class representatives are members of the class, have suffered the same injury as the proposed class members, and have been injured by Defendants’ actions and inactions that have led to conditions of confinement that threaten the health and safety of all class members.5/ In such circumstances, the representative’s claims are “obviously typical of the claims … of the class,” and satisfy Rule 23(a)(3). See Baggett v. Ashe, 2013 U.S.Dist.LEXIS 73202, at *2 (D. Mass. May 23, 2013); see also Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001) (typicality requirement is satisfied when “the cause of the injury is the same—here, the Board’s discriminatory policy and practice”).
There is, moreover, no risk that issues involving the named Plaintiffs’ individual claims will impede their litigation on behalf of the class. Because the named Plaintiffs are challenging the same practice and seeking the same relief without regard to the outcome of their own efforts to obtain release from unconstitutional conditions of confinement, they “can fairly and adequately pursue the interests of the absent class members without being sidetracked by [their] own particular concerns.” In re Credit Suisse-AOL Sec. Litig., 253 F.R.D. 17, 23 (D.Mass. 2008).
D. The proposed class representatives and class counsel can adequately represent the class.

5/

See Declarations cited supra.

15

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 16 of 19
Finally, the named plaintiffs and their counsel will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Two factors must be satisfied to fulfill this prerequisite: “(1) the absence of potential conflict between the named plaintiff and the class members and (2) that counsel chosen by the representative parties is qualified, experienced and able to vigorously conduct the proposed litigation.” Adair v. Sorenson, 134 F.R.D. 13, 18 (D. Mass. 1991), quoting Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985) (internal quotations omitted).
Here, “the interests of the representative party will not conflict with the interests of any of the class members,” Andrews v. Bechtel Power Corp., 780 F.3d 124, 130 (1st Cir. 1985), because – as already explained – those interests are aligned. The named Plaintiffs have alleged the same injuries, arising from the same conduct, and they seek the same injunctive and declaratory relief, which will apply equally to the benefit of all class members.
In addition, “counsel chosen by the representative party is qualified, experienced and able to vigorously conduct the proposed litigation.” Id. The named Plaintiffs are represented by Lawyers for Civil Rights and Yale Law School’s Worker and Immigrant Rights Advocacy Clinic. Collectively, counsel have significant experience in the areas of immigration law, constitutional law, class action litigation, and habeas corpus actions. See Declaration of Oren Sellstrom In Support of Class Certification; Declaration of Michael Wishnie In Support of Class Certification. For the same reasons, counsel also satisfy the requirements of Rule 23(g) and should be appointed as class counsel. II. The Proposed Class Meets the Requirements of Rule 23(b)
“In addition to meeting the four requirements of Rule 23(a),” the Plaintiffs “must show that the proposed class falls into one of the three defined categories of Rule 23(b).” Reid, 297 F.R.D. at 192. Here, the most applicable category is described in Rule 23(b)(2), which applies
16

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 17 of 19
when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole.”
The “prime examples” of Rule 23(b)(2) cases, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997), are civil rights cases like this one, where the claim asserts that the Defendants have “engaged in unlawful behavior towards a defined group….” Reid, 297 F.R.D. at 193. The rule applies, moreover, where “a single injunction or declaratory judgment would provide relief to each member of the class” (as opposed, for example, to cases in which each class member would need an individual injunction or declaration, or in which each class member would be entitled to an individualized award of money damages). Dukes, 564 U.S. at 360-61.
The claims asserted in the Petition and Complaint satisfy these requirements. Defendants have engaged in unconstitutional behavior towards the entire class. Every member of the class is at imminent risk of being infected by COVID-19, due to their conditions of confinement. And, because every member of the class is entitled to relief from these unconstitutional conditions, an appropriate injunction or declaration will provide relief on a class-wide basis. “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. Dukes, 564 U.S. at 360.
CONCLUSION Plaintiffs respectfully ask the Court to: (1) Certify a class consisting of all civil immigration detainees who are now or will be held by Respondents-Defendants at Bristol County Immigration Detention Facilities; (2) Appoint named Plaintiffs Maria Alejandra Celiman Savino and Julio Cesar Medeiros Neves as class representatives; and
17

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 18 of 19

(3) Appoint the undersigned counsel as class counsel.

Dated: March 27, 2020

Respectfully submitted,

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES AND ALL THOSE SIMILARLY SITUATED

By their attorneys,
/s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0608 osellstrom@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern* B. Rey, Law Student Intern* Megan Yan, Law Student Intern* Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Attorneys for Plaintiffs

† Motion for admission pro hace vice forthcoming. 18

Case 1:20-cv-10617-WGY Document 14 Filed 03/27/20 Page 19 of 19 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2020, the above-captioned document was filed through the ECF system and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as nonregistered participants.
/s/ Oren Sellstrom
19

 
 Case 1:20-cv-10617-WGY Document 38 Filed 04/02/20 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

All those similarly situated,

)

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

Superintendent Bristol County

)

House of Corrections in his

)

Official Capacity,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-10617-WGY

YOUNG, D.J.
GROUP 1 FIRST NAME GERSON HAYK HENRY KOKOU ROBSON MOHAMAD JESSE JERVIS SRIKALATHAN FIRDAVS RUBEN MARCIO SO ORDERED.

ORDER

April 2, 2020

LAST NAME MCGLASHIN KHACHATRYAN URBINA-RIVAS AZIABO MARIA-DE OLIVEIRA BASSYOUNI MAINA VERNON ROHAN SALOKHIDINOV POGHOSYAN DE SAUZA
/s/ Wiliam G. Young WILLIAM G. YOUNG DISTRICT JUDGE

 
 Case 1:20-cv-10617-WGY Document 44 Filed 04/04/20 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-cv-10617-WGY

YOUNG, D.J.

April 4, 2020

ORDER

As set forth at the hearing on April 3, 2020, it is hereby

Ordered:

1. Upon release by respondent of Hayk Khachatyan, Kokou

Aziabo, Srikalathan Rohan, Firdavs Salakhidinov, Ruben

Poghosyan, and Marcio De Sauza, the petition with respect these

individuals is MOOT.

2. The Court grants bail to Henry Urbina Rivas, Robson

Maria-De Oliveira, and Jervis Vernon pending resolution of the

habeas corpus petition, upon all bail conditions deemed

appropriate and imposed by ICE, and the following additional

terms and conditions as to each of them: (a) release only to an

acceptable custodian; (b) such custodian will pick the releasee

Case 1:20-cv-10617-WGY Document 44 Filed 04/04/20 Page 2 of 4
up outside the facility by car; (c) releasee will be taken from the facility to the place of residence previously identified to ICE (ICE shall notify the state and local law enforcement authorities about their presence and thee details of their bail status); (d) releasees are to be fully quarantined for 14 days from date leaving facility to the residence; (e) during and after the 14-day quarantine, releasees will remain under house arrest, without electronic monitoring, and shall not to leave the residence for any reason save to attend immigration proceedings or attend to their own medical needs should those needs be so severe that they have to go to a doctor’s office or hospital (in which case they shall notify ICE as soon as practicable of their medical necessity); (f) releasees are not to be arrested by ICE officers unless: (i) upon probable cause a warrant is issued by a United States Magistrate Judge or United States District Judge that they have violated any terms of their bail, or (ii) there is a final order of removal making them presently removable from the United States within two weeks. The Court may, sua sponte or on motion of the parties, modify or revoke the bail provided herein.
3. Bail is DENIED without prejudice to Mohamad Bassyouni subject to resubmission by petitioners' counsel of a more detailed request.
[2]

Case 1:20-cv-10617-WGY Document 44 Filed 04/04/20 Page 3 of 4
4. The Court continues its consideration of bail for Gerson McGlashin. Respondent shall by the 5:00 p.m. April 6, 2020, provide a detailed explanation to the Court of how ICE intends to execute the final removal order within the next two weeks.
5. The Court continues its consideration of bail for Jesse Maina. Petitioner shall by Friday, April 10, 2020 provide the Court with a detailed plan of where he would reside, with whom, and who would be the custodian.
6. The parties shall by 4:00 pm, Saturday, April 4, 2020, submit, a single list (if possible) of 50 detainee names without regard to groupings previously identified by the Court. If no list is provided, or multiple lists are provided, then the Court will select its own list by 4:00 pm on Sunday, April 5, 2020. The Court proposes, if possible, to review ten petitions for bail per day beginning Tuesday, April 7, 2020, and continuing Wednesday, Thursday, Friday and Monday of the following week. As soon as practicable before each hearing date, the Court requests the parties submit briefing as to each detainee’s circumstances relevant to the Court’s bail determination.
7. The proposed stipulated Protective Order (ECF No. 39-1) is adopted as submitted. All parties are bound by the protective order, including the parties in the related matter.
[3]

Case 1:20-cv-10617-WGY Document 44 Filed 04/04/20 Page 4 of 4
8. Counsel for Darcy McMenamin and Gerardo Portillo shall by 12:00 noon on Monday April 6, 2020 notify the Court of their response to the respondent’s counsel’s proposal in the related action and whether that matter is resolved.
9. The 48-hour notification order issued in this action (ECF No. 22) does not apply to those voluntarily released by respondent in paragraph 1, supra, as the petition is moot as to those individuals, but it remains in effect as to those individuals granted bail by this Court and all other class members.

SO ORDERED.

__/s/ William G. Young__ WILLIAM G. YOUNG DISTRICT JUDGE

[4]

 
 Case 1:20-cv-10617-WGY Document 40 Filed 04/03/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

MOTION TO ADD INDIVIDUAL TO SUBCLASS ONE Petitioners-Plaintiffs (“Plaintiffs”), through undersigned counsel, respectfully request this Court to enter an order adding Named Plaintiff Maria Alejandra Celimen Savino to its first provisionally certified subclass in this action (“Subclass One”). At its April 2, 2020 hearing, this Court provisionally certified five subclasses. While this Court has not yet entered a written order and a transcript of these proceedings is not yet available, Plaintiffs understand Subclass One to consist of individuals detained at the Bristol County Detention Facilities without any prior criminal convictions and with no pending criminal charges. Immediately following the hearing, the Court issued an order listing the class members in Subclass One. ECF No. 38. Later in the day on April 2, 2020, Plaintiffs’ counsel emailed Defendant’s counsel, and followed up with a phone call this morning (April 3, 2020), concerning Plaintiffs’ position that Ms. Savino properly belongs in Subclass One because she has no prior criminal convictions and has no pending criminal charges. Defendant’s counsel stated an intent to investigate further, but Plaintiffs’ counsel have not yet heard back. Based on Plaintiffs’ independent investigation, Plaintiff Maria Alejandra Celimen Savino

1

Case 1:20-cv-10617-WGY Document 40 Filed 04/03/20 Page 2 of 4
is properly included in Subclass One. First, the parties agree that Ms. Savino has no criminal convictions. See Government’s Bristol Roster, Row 115. Second, as to pending charges, Plaintiffs’ investigations, including communications with Ms. Savino’s immigration attorney, reveal that Ms. Savino currently has no pending charges. See Exhibit B to Declaration of Julio Henriquez, Addendum of Declarations in Support of ECF No. 33, submitted in camera via email (April 2, 2020) (copy of Ms. Savino’s complete criminal docket). The government’s spreadsheet lists several potential criminal offenses for Ms. Savino but does not indicate which are pending or dismissed charges. Plaintiffs recognize that the government has superior access to such information on criminal charges, however the annotation for Ms. Savino under “Criminal History” does not appropriately reflect Plaintiffs’ understanding that 1) Ms. Savino has no pending criminal charges and 2) the listed charges have either been dismissed by the court or nolle prossed by the prosecuting office.
Accordingly, Plaintiffs respectfully request this Court to issue an order adding Ms. Savino to Subclass One, or in the alternative, to order Defendant to produce evidence by the close of business today that Ms. Savino is subject to any pending criminal charges, as well as the nature and basis of any such charges.
2

Case 1:20-cv-10617-WGY Document 40 Filed 04/03/20 Page 3 of 4

Dated: April 3, 2020

Respectfully Submitted,
/s/ Michael J. Wishnie
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
Bianca Rey, Law Student Intern* Megan Yan, Law Student Intern*
Reena Parikh (pro hac vice) Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Org.
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Oren Sellstrom (BBO #569045) Oren Nimni (BBO #691821)
Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal (pro hac vice)
Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org
* Law Student Appearance Forthcoming

3

Case 1:20-cv-10617-WGY Document 40 Filed 04/03/20 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that, on April 3, 2020 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system.

Date: April 3, 2020

Respectfully submitted,
/s/ Michael J. Wishnie_______________ Michael Wishnie (BBO# 568654)

4

Case 1:20-cv-10617-WGY Document 40-1 Filed 04/03/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

CERTIFICATE OF CONFERENCE PURSUANT TO LOCAL RULE 7.1(a)(2)

Petitioners-Plaintiffs, through undersigned counsel, hereby file this Certificate of

Conferral Pursuant to Local Rule 7.1(a)(2). Counsel for Plaintiffs conferred via email on April 2

and via telephone on April 3 with Attorney Kanwit regarding the proper classification of Named

Plaintiff Savino in Subclass One, but the parties were not able to resolve this issue as of the time

of this filing.

For this reason and those set forth in the motion, Petitioner-Plaintiffs respectfully request

that the Court grant the motion.

Dated: April 3, 2020

Respectfully Submitted,

/s/ Michael J. Wishnie

Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
Bianca Rey, Law Student Intern* Megan Yan, Law Student Intern*

1

Case 1:20-cv-10617-WGY Document 40-1 Filed 04/03/20 Page 2 of 2
Reena Parikh (pro hac vice) Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Org.
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org Oren Sellstrom (BBO #569045) Oren Nimni (BBO #691821) Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal (pro hac vice) Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org * law student appearance forthcoming
2

 
 Case 1:20-cv-10617-WGY Document 41 Filed 04/03/20 Page 1 of 15

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO

)

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

DEFENDANTS’ SUPPLEMENTAL BRIEF

At a hearing yesterday, April 2, 2020, the Court indicated its intention to “provisionally

certify” a class and to grant release from detention to multiple sub-groups within the class.

Defendants are filing this Supplemental Brief because:

(i) The detainees do not fit neatly into five sub-classes and must be analyzed

individually;

(ii) The issue of the Court’s authority to provide class-wide relief under the Immigration

and Nationality Act has not been fully addressed; and

(iii) There is no basis for declaring a class on the present record.

With great respect for both the gravity of the coronavirus pandemic and this Court’s

thoughtful efforts to respond rapidly to Plaintiffs’ concerns, Defendants urge the Court to reconsider.1

1 There are additional issues, not repeated again here, raised in Defendants’ original Opposition. These included that Plaintiffs lack Article III standing, they have failed to demonstrate a Constitutional harm that the Court can redress via a writ of habeas corpus, and, finally, that the alleged harm is not and would not be caused by Defendants.

Case 1:20-cv-10617-WGY Document 41 Filed 04/03/20 Page 2 of 15
A. The Threat of an Uncontrolled Outbreak Is Speculative The Court’s view, as articulated at the most recent hearing, is that there is a significant risk of the COVID-19 virus infecting one or more detainees. To date, no detainee or inmate at the Bristol County House of Corrections has tested positive for, or is showing symptoms of, infection. The Court’s proposed order(s) would release certain groups of ICE detainees so as to lessen the risk of the anticipated infection spreading among the remaining detainees. The Court would thus provide the relief requested by the Plaintiffs, i.e., release, to benefit not those who are released but to benefit those who are not released.2 In doing so, the Court is essentially taking the position that the steps taken by BCHOC and ICE to protect the detainees are inadequate. Defendants submit that this is incorrect. Defendants have submitted highly detailed evidence regarding the extensive measures taken at BCHOC to prevent, and contain, any COVID-19 infection. In opposition, Plaintiffs and amicus curiae have submitted vague and general statements about prisons generally. Other than detainee letters and declarations, which contain demonstrably inaccurate statements of fact, Plaintiffs have not submitted reliable evidence regarding the actual conditions at BCHOC. Defendants understand that the potential risk of a widespread outbreak weighs heavily on the Court, but urge the Court to separate speculation from Plaintiffs as to what might happen from the reality at BCHOC. That reality is no detainee or inmate has a confirmed, or even suspected,
2 The current factual record does not establish that the released detainees would be at a lower risk of COVID-19 infection. The rate of infection in the general populace is much greater than within BCHOC (8,966 positive cases in Massachusetts as of April 2, 2020 and 0 positive cases in BCHOC as of the same date, https://www.mass.gov/doc/covid-19-cases-inmassachusetts-as-of-april-2-2020/download (accessed 4/2/20). Moreover, the factual record is completely devoid of detail regarding how and where any released detainees will obtain medical care on release, nor what the conditions of their home confinement will be, such as who else is living there, what sort of physical proximity is likely, etc.
2

Case 1:20-cv-10617-WGY Document 41 Filed 04/03/20 Page 3 of 15
COVID-19 infection. That stands in great contrast to the situation in the community into which
the detainees may be released.3
B. Other Courts Have Recognized the Risk but Declined to Release Detainees
In Sacal-Michal v. Longoria, (S.D. Tx. March 27, 2020)(copy attached), the court
rejected a civil immigration detainee’s request to be released in light of his health issues and
COVID-19. The court noted that a habeas petition can address the fact or duration of detention,
but that “allegations that challenge rules, customs, and procedures affecting conditions of
confinement are properly brought in civil rights actions.” Id., citing Schipke v. Van Buren, 239
F. App'x 85, 85–86 (5th Cir. 2007). The court concluded that plaintiff was challenging the
conditions of his confinement.
Sacal alleges that Respondents cannot prevent the COVID-19 virus from infecting the detention center where he is detained. … He contends that he will be exposed to COVID-19 via the medical staff or other detainees. And he alleges that because of his failing health, “[c]ontinued detention . . . presents a clear and present danger to his fundamental right to life.” Sacal effectively alleges that ICE’s inability to isolate him successfully, the movement of individuals within the detention facility, and the absence of adequate testing to identify carriers of the virus, all render it a certainty that he will contract the illness if maintained in custody. Those factors focus on the conditions of his confinement. A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.
Id. A detainee can establish a constitutional violation based on inadequate conditions of his
confinement. But to do so, he must demonstrate that the officials acted with
3 Plaintiffs have not sought, and there is no basis for, the Court inserting itself into the operations of BCHOC. By focusing on the density of the detainee population, and prejudging the absence of any alternatives to release to address the Court’s concerns, the Court has substituted its judgment for that of ICE and BCHOC on how best to deal with the coronavirus, however.
3

Case 1:20-cv-10617-WGY Document 41 Filed 04/03/20 Page 4 of 15
deliberate indifference to his medical needs or his safety. In language that is applicable to this
case, the court in Sacal-Michal stated that Plaintiff was unlikely to prove this:
Here, the record does not demonstrate that Sacal is substantially likely to prove that ICE has acted with deliberate indifference with respect to Sacal’s health. On the contrary, the record reflects that ICE has provided constant medical attention to Sacal, and has implemented preventative measures to reduce the risk of Sacal contracting COVID-19. Those measures may ultimately prove insufficient. But the implementation of those measures preclude a finding that ICE has refused to care for Sacal or otherwise exhibited wanton disregard for his serious medical needs. In other words, Sacal has not demonstrated that the conditions in which ICE maintains him in custody arise to the level of a constitutional violation. In addition, Sacal has not demonstrated a substantial likelihood of success on his fundamental argument—i.e., that the detention facility is incapable of protecting him from contracting COVID-19 or providing appropriate medical attention should he be infected. For these propositions, Sacal offers only conclusory arguments based on general articles regarding the highlycontagious nature of COVID-19 and its impact on the elderly and individuals with certain underlying medical conditions.
* * * In essence, Sacal contends that a high likelihood exists that many detainees in the Port Isabel Detention Center will contract COVID19, and that for those who are elderly or suffer from underlying medical conditions that render them prone to the more serious aspects of the virus, the risk of death is significant. Sacal offers no evidence to support these propositions other than conclusions extrapolated from general information. And accepting Sacal’s reasoning would logically require the release of all individuals currently detained who are elderly or suffer from certain underlying medical conditions. The law does not require such a generalized result. The decisions by other district courts considering similar requests demonstrate the fact-specific nature of the analysis.
* * *
The Court recognizes that the COVID-19 pandemic presents an extraordinary and unique public-health risk to society, as evidenced by the unprecedented protective measures that local, state, and national governmental authorities have implemented to stem the spread of the virus. And it is possible that despite ICE’s best efforts, Sacal may be exposed and contract the virus.
4

Case 1:20-cv-10617-WGY Document 41 Filed 04/03/20 Page 5 of 15
Moreover, Sacal’s age and medical condition render him particularly vulnerable to serious complications from the virus. But the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release. Sacal has not demonstrated his likelihood of proving that ICE has failed to take reasonable measures to guarantee his safety.
Id. Presently, there is no legal basis to justify an alien’s release based solely on COVID-19.
See Dawson v. Asher, 2020 WL 1304557 (W.D. Wash. March 19, 2020). The court in Dawson
found that there is no legal authority to justify an immediate release of an alien based on
COVID-19. The court ruled that appropriate relief would be to order the agency to ameliorate
any alleged violative conditions within the facility.
Outside of the immigration arena, courts have found that the threat of COVID-19 is not
sufficient to justify release. For example, the court in U.S. v. Jones found that health risks are
not the sole determinant of whether detention is appropriate, and every decision must include an
individualized assessment of the existing standards for release eligibility. See U.S. v. Jones,
2020 WL 1323109, (D. MD. March 20, 2020).4
In United States v. Martin, United States District Court, D. Maryland, Southern Division,
March 17, 2020 (2020 WL 1274857), the court stated:
Finally, while the record confirms that Martin has disclosed that he suffers from asthma, high blood pressure, and diabetes, this alone is insufficient to rebut the proffer by the Government that the correctional and medical staff at CDC are implementing precautionary and monitoring practices sufficient to protect detainees from exposure to the COVID-19 virus. For all the above reasons, I reach the same conclusion as Chief Magistrate Judge
4 However, a separate court ruled that COVID-19 could establish changed circumstance to permit a redetermination of a defendant’s bail based on new flight risk factors arising out of COVID-19. See U.S. v. Stephens, 2020 --- F. Supp.3d.---, 2020 WL 1295155 (S.D.N.Y. March 19, 2020). This is, of course, very different than court-ordered release.
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Gesner. Martin has failed to rebut the presumption of detention, and the Government has established by clear and convincing evidence that he must continue to be detained for the protection of the community. Therefore, his appeal is DENIED.
In United States of America v. Teon Jefferson, United States District Court, D. Md.
March 23, 2020 (2020 WL 1332011), the court rejected the plaintiff’s contention that his asthma
constituted an unacceptable health risk that should result in release to home confinement with
location monitoring. The court noted that no third-party custodian had been identified and that
location monitoring is a particularly scarce. resource under the current conditions. Id.
In another COVID-19 release case, United States v. Hamilton, (E.D.N.Y. March 20,
2020), 2020 WL 1323036, the court rejected the plaintiff’s argument that in light of his
advanced age and medical conditions, the ongoing COVID-19 pandemic constitutes “another
compelling reason” to permit his temporary release under 18 U.S.C. 3142(i)(4). According to
the court:
While the court is mindful of Mr. Hamilton’s concerns, it does not believe that the COVID-19 outbreak—at this point in time— constitutes a sufficiently compelling reason to justify release under the circumstances of this case. Mr. Hamilton does appear to fall within a higher-risk cohort should he contract COVID-19; however, he does not suffer from any pre-existing respiratory issues and his medical conditions appear to have been well managed over the course of the past fourteen months of incarceration. Further, and perhaps most importantly, as of this writing, there have been no reported incidents of COVID-19 within MDC, and the Bureau of Prisons is taking system-wide precautions to mitigate the possibility of infection within its facilities. As such, given the risks that Mr. Hamilton’s release would pose, the court concludes that the possibility of an outbreak at MDC is not a “compelling circumstance” justifying his release.
Id.
United States v. Gileno, (D. Conn. March 19, 2020), 2020 WL 1307108, is to similar
effect: “The Court takes judicial notice of the fact that public health recommendations are
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rapidly changing. But at this time the Court cannot assume that the Bureau of Prisons will be
unable to manage the outbreak or adequately treat Mr. Gileno should it emerge at his correctional
facility while he is still incarcerated.” Id. Accord Nikolic v. Decker, (S.D.N.Y. March 19, 2020),
2020 WL 1304398 (in a case not subject to the restrictions of 8 U.S.C. § 1252(f), court noted that
a federal court should grant bail to a habeas petitioner only in unusual cases).
C. There Is No Class Which May Be Certified
There is a lack of commonality among the purported class members, even as subdivided
by the Court. The appropriate solution is to make individual determinations and not to certify a
class.
Plaintiffs have sought certification of a single class made up of all persons presently
detained at BCHOC or whomever will be so detained, from now until the end of time. See TRO
Memorandum at p. 5. They have not demonstrated, nor could they, that the members of this
virtually infinite class share key attributes such as similar criminal history, similar risk of flight,
similar medical conditions, similar situations for home release, or many other potentially relevant variables.5 Thus, there is no commonality of the purported class members which is required for
class certification.
The party seeking certification must establish the elements necessary for class certification: the four requirements of 23(a) and one of the several requirements of Rule 23(b). Whether the movant has carried that burden is a question the district court must resolve through a “rigorous analysis” of Rule 23's requirements. That analysis may entail some overlap with the merits of the plaintiff's underlying claim. But the overlap must necessarily be limited, for Rule 23 grants courts no license to engage in free-ranging merits
5 The Court did not request that the parties address risk of flight in the list of current detainees. The annotated list also does not address the home situation of any detainee upon release nor factors other than criminal convictions, which should be taken into account in any release determinations. Examples of the application of some of these factors will be presented to the Court in a letter outlining ICE’s proposed resolution of the category 1 detainees.
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inquiries at the certification stage. Instead, merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. Kenneth R. ex rel. Tri-Cty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 263 (D.N.H. 2013)(internal quotation marks and citations omitted); Amgen Inc. v. Connecticut Ret. Plans and Trust Funds, 521 U.S. 591 (2013); In re Relafen Antitrust Litig., 218 F.R.D. 337, 341 (D.Mass.2003) (citing Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir.2003)). The Supreme Court has cautioned against jumping to the relief before determining certification: The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement. Amchem Prod., Inc. v. Windsor, 622–23 (1997). The Supreme Court rejected the district court’s approach in Amchem because it put the benefit to the purported class members ahead of the determination of whether there truly was a certifiable class in the first place. Should it certify a class on this record, the Court would improperly do that in this case. In this one-class, class action complaint, with a very limited record, the Court has determined that there are five relevant “sub-classes” of detainees based on only two variables: criminal history and CDC-recognized comorbidities for COVID-19. Defendants object to creation of sub-classes. Plaintiffs’ have not sought them, and Rule 23(c)(5) requires that there be a class first before subclasses are created. The Court’s proposal in this case improperly skips to the second step. As stated in Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 621 (1997): “Federal courts, in any case, lack authority to substitute for Rule 23's certification criteria a
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standard never adopted—that if a settlement is “fair,” then certification is proper.” The need for sub-classes demonstrates that the entire group of detainees cannot and should not be designated as a class because each detainee presents unique factors which cannot be dealt with on a classwide basis – even as subdivided.
Moreover, there is no evidence at this time that any of the class members of the purported sub-classes has consented to representation by Plaintiffs counsel or seeks to join the class. The Court has: (i) created five sub-classes as to which no one has requested certification; (ii) without first certifying a class; (iii) with the sub-classes made up of persons who have not agreed to be class members; (iv) so non-released sub-class members can benefit by the reduced density of the remaining detainee population. This is so notwithstanding that the ICE detainee facilities at BCHOC are well below capacity and the Court has not made a finding that a specific level of population reduction will ameliorate the Court’s perception that the facility is overcrowded.6
At this point, we do not know if any of the potential class members wish the resolution the Court proposed. See Rule 23(d) and (e)(requiring notice to class members of proposed steps, including ultimate relief, opt-out options, objection rights, etc.); See, e.g. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 612, 117 S. Ct. 2231, 2244, 138 L. Ed. 2d 689 (1997).
Rule 23(a)(3) of the Federal Rules of Civil Procedure requires that the claims of the representative parties are typical of the claims of the class. Here, the named representatives are not representative because the Court has specifically sub-divided the class into five groups. Since the two named Plaintiffs are, at most, representative of only two of the Court’s groups,
6 The Court made reference at yesterday’s hearing to beds being one to two feet apart at the facility, but not every bed is filled and the minimal distance is believed to be between ends, not the long sides of beds. Again, the factual record is insufficiently developed for the Court to make a finding and ought to be supplemented prior to the Court taking the extraordinary step of ordering the release of dozens of detainees.
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they cannot represent the interests of all purported class members. There are no representatives of at least three of the sub-classes.
Rule 23(a)(4) further requires that the representatives fairly and adequately protect the interests of the class. Here, the representative parties cannot do so because they are unlikely to be released, under the Court’s proposal, and other members of the class will be released. Plaintiffs seeking class certification must, among other things, (1) avoid framing common questions so generally that they encompass myriad, distinct claims; (2) provide significant proof that “there exists a common policy or practice ... that is the alleged source of the harm to [the] class members,” M.D. v. Perry, 294 F.R.D. 7, 28–29, 2013 WL 4537955, at *14 (S.D.Tex. August 27, 2013); (3) identify common questions of fact or law that can be “answered either ‘yes' or ‘no’ for the entire class,” that is, identify central questions whose answers “ ‘will not vary by individual class members,’ ” Raposo v. Garelick Farms, LLC, 2013 WL 3733461, at *3 (D.Mass. July 11, 2013) (quoting Donovan v. Philip Morris, USA, Inc., 2012 WL 957633, at *21 (D.Mass. Mar. 21, 2012)); and (4) show that “dissimilarities in the proposed class” do not “impede the generation of common answers.” Wal–Mart, 131 S.Ct. at 2551. Plaintiffs have done none of that.
To satisfy Rule 23(a)(2)'s commonality requirement, the class claims must depend upon a “common contention” that is “capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Questions are common if they can “each be answered either ‘yes’ or ‘no’ for the entire class” and “the answers will not vary by individual class member.”
Walker v. Osterman Propane LLC, 411 F. Supp. 3d 100, 108 (D. Mass. 2019). D. The Court Lacks Authority to Issue a Class-Wide Injunction
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“Regardless of the nature of the action or claim . . . no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221-1232], other than with respect to the application of such provisions to an individual alien against whom proceedings . . . have been initiated.” 8 U.S.C. § 1252(f).
This issue was briefed in the Defendants’ Opposition to the Motion for a Temporary Restraining Order. The Court did not specifically address its authority to certify a class and issue relief in an immigration case. This Court lacks jurisdiction to enjoin the normal operation of 8 U.S.C. § 1226(c).7 The Supreme Court has instructed that the provision is a bar on “classwide injunctive relief against the operation of §§ 1221-1231” with a carve out that applies to “individual cases.” Reno v. Am. Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999) (emphasis added). The Court in Jennings v. Rodriguez, indicated that section 1252(f)(1) would apply to constitutional claims like those raised by Plaintiffs because they seek to enjoin the ordinary application of section 1226(c) as unconstitutional. See No. 15-1204, --- U.S. ---, 138 S. Ct. 830, 852 (recognizing that the Ninth Circuit had found that section 1252(f)(1) did not bar its jurisdiction over the statutory claims but concluding that “[t]his reasoning does not seem to apply to an order granting relief on constitutional grounds”). This provision is entitled “limit on injunctive relief,” and it unquestionably prohibits class-based injunctions while preserving individual access to a habeas writ and all forms of equitable relief. The Sixth Circuit recently echoed this sentiment, stating it was “skeptical” that “Petitioners would prevail” on whether § 1252(f)(1) bars declaratory relief. Hamama v. Adducci, 912 F.3d 869, 880 n.8 (6th Cir. 2018). It
7 Defendants recognize that district courts have authority to issue a writ of habeas corpus to address constitutional wrongs in individual cases. That is not what the Court has proposed, and, more importantly, it is not what Plaintiffs have sought. It is not for the Court to recast Plaintiffs’ theory of recovery (i.e., the broadest class possible) nor the legal basis upon which it stands.
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stated that, while “[i]t is true that ‘declaratory relief will not always be the functional equivalent of injunctive relief,’ … in this case, it is the functional equivalent.” Id. (citing Alli v. Decker, 650 F.3d 1007, 1014 (3d Cir. 2011)). “The practical effect of a grant of declaratory relief as to Petitioners’ detention would be a class-wide injunction against the detention provisions, which is barred by § 1252(f)(1).” Id. Hamama v. Homan, No. 17-2171, 2018 WL 6722734, (6th Cir. Dec. 20, 2018), the Sixth Circuit held that the District court correctly held that 8 U.S.C. § 1252(g) divested it of jurisdiction as a matter of federal statutory law. Id. at *4. However, as the Sixth Circuit explained, the District Court then “erred by finding that it could still exercise jurisdiction because ‘extraordinary circumstances’ created an as-applied constitutional violation of the Suspension Clause. This [was] a broad, novel, and incorrect application of the Suspension Clause.” Id. The Sixth Circuit held that the Suspension Clause did not apply because “Congress has provided an adequate alternative [remedy].”
The Sixth Circuit’s prior decision in Hamama v. Adducci, 912 F.3d 869, 878–79 (6th Cir. 2018), is also instructive: “Nevertheless, we find that 8 U.S.C. § 1252(f)(1) bars the district court from entering class-wide injunctive relief for the detention-based claims. In our view, Reno [525 U.S. 471] unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief for the detention-based claims. Petitioners disagree and raise three objections. We are not alone in our interpretation of § 1252(f)(1). Other courts, following Reno's guidance, have determined that they do not have jurisdiction under § 1252(f)(1) to issue class-based injunctive relief against the removal and detention statute,” citing Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999); Pimentel v. Holder, 2011 WL 1496756, at *2 (D.N.J. Apr. 18, 2011); Belgrave v. Greene, 2000 WL 35526417, at *4 (D. Colo. Dec. 5, 2000) (explaining that § 1252(f)(1) does not bar detainees from seeking habeas relief from detention, but it does “require[ ] that those challenges be brought
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on a case-by-case basis”). The Sixth Circuit continued:
Second, the claim that “the district court was not enjoining or restraining the statutes” is implausible on its face. The district court, among other things, ordered release of detainees held “for six months or more, unless a bond hearing for any such detainee is conducted”; created out of thin air a requirement for bond hearings that does not exist in the statute; and adopted new standards that the government must meet at the bond hearings (“shall release ... unless the immigration judge finds, by clear and convincing evidence, that the detainee is either a flight risk or a public safety risk”). If these limitations on what the government can and cannot do under the removal and detention provisions are not “restraints,” it is not at all clear what would qualify as a restraint. The district court did not have jurisdiction to enter class-wide injunctive relief on Petitioners' detention-based claims.
Id., at 879-880.
E. The Action the Court Proposes Taking Is Not Readily Reversible
Another concern that arises from the Court’s proposed partial grant of the motion for a
temporary restraining order is that the relief is not readily reversible. If the Court orders the
release of ICE detainees without an individualized analysis of flight risk, then it is highly likely
that should the Court determine subsequently, after discovery, that its preliminary relief ought to
be rescinded, it may be too late. The released detainees will have a significant incentive to
disappear, particularly if they know the preliminary relief is not permanent.
CONCLUSION
The risks presented by the coronavirus pandemic are grave. The solution sought by
Plaintiffs is extraordinary, it runs afoul of 8 U.S.C. § 1252(f), and it is unnecessary given the
current situation at BCHOC. Moreover, there is no assurance that it will decrease the risk to
either the released detainees or the detainees remaining in custody. The Defendants urge the
Court to take additional time, through this weekend at least, before deciding if the Court has the
authority to issue class-wide relief and whether such an order is warranted here. Defendants
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believe it is not. April 3, 2020

Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael P. Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: April 3, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

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CaCsaes1e:210:2-0cv-c-0v-010036717D-WocGuYmeDnto1cu7meFnilet d41o-n1 03F/i2le7d/2004i/n03T/X20SDPaPgaeg1e o1fo1f414
United States District Court Southern District of Texas

ENTERED

March 27, 2020

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

David J. Bradley, Clerk

JAIME SACAL-MICHA,
Petitioner, VS.
JOSE GARCIA LONGORIA JR, et al.,
Respondents.

§ § § § CIVIL ACTION NO. 1:20-CV-37 § § § §

OPINION AND ORDER

On March 22, 2020, Petitioner Jaime Sacal-Micha (Sacal) filed a Petition for Writ of

Habeas Corpus and Complaint for Declaratory and Injunctive Relief (Doc. 1), requesting that the

Court order his immediate release from immigration detention pending the resolution of his

claim under the United Nations Convention Against Torture.1 Sacal is elderly and has serious

underlying medical conditions. He seeks release based on the possibility of a COVID-19

outbreak within the detention center in which he is being held, and the facility’s alleged inability

to protect him from contracting the virus or providing him with adequate medical attention

should he do so.

On March 24, 2020, the Court held a telephonic conference regarding the request for a

temporary restraining order. The Court has reviewed the briefing and the exhibits submitted by

the parties, as well as the applicable law.2 For the following reasons, the Court denies the

application for a temporary restraining order.

I. Procedural and Factual Background

Sacal is a sixty-nine-year-old wealthy Mexican citizen with significant real estate

1 Sacal brings suit against Jose Garcia Longoria, Jr. (Officer in Charge, Port Isabel Detention Center), Chad Wolf (Acting Secretary of the Department of Homeland Security), and the United States of America (collectively, the “Respondents”). 2 The Court grants Sacal’s Motion for Leave to File Exhibit “M” in Support of Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (Doc. 15) and his Motion for Leave to File Exhibits “N” and “O” in Support of Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (Doc. 16). The Court considers the exhibits attached to those two motions as part of the record.
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holdings. He claims he fled Mexico because family members seeking to obtain control of his real estate used their influence to have the government file false criminal charges against him, accusing him of a violent crime against one of his granddaughters. The Mexican government issued an arrest warrant for Sacal’s arrest. (Arrest Warrant, Doc. 10)
Sacal vigorously denies the criminal charges, but chose to leave Mexico to avoid arrest and to fight the charges from afar. He planned to reside in his apartment in New York City. On December 2, 2019, he presented himself at a United States port of entry and sought admission with his nonimmigrant visa. (Record of Deportable/Inadmissible Alien, Doc. 9-1) The inspecting officer with United States Customs and Border Protection (CBP) determined that the United States Department of State had revoked Sacal’s visa based on the outstanding Mexican arrest warrant. (Id.; TECS Record, Doc. 9-2) CBP issued Sacal a Notice of Expedited Removal, charging him as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). As Sacal had expressed a fear of return to Mexico, he was transferred to the custody of United States Immigration and Customs Enforcement (ICE), which detained him at the Port Isabel Detention Center. (Notice of Expedited Removal, Doc. 9-3; Record of Determination/Credible Fear Worksheet, Doc. 9-4)
On December 6, an Asylum Officer conducted the credible-fear interview and concluded that Sacal did not present a credible fear of persecution or torture if returned to Mexico. (Record of Determination/Credible Fear Worksheet, Doc. 9-4) Sacal sought review by an Immigration Judge, who vacated the Asylum Officer’s decision and placed Sacal in regular removal proceedings under 8 U.S.C. § 1229a. (Record of Negative Credible Fear Finding/Request for IJ Review, Doc. 9-5) According to Sacal, the Immigration Judge indicated that Sacal could seek relief under the United Nations Convention Against Torture (CAT). (Petition, Doc. 1, ¶ 9)
Sacal then requested that ICE release him on parole. (Emails, Doc. 2, 11-12) On February 11, 2020, ICE decided to not release Sacal based on two key findings, both premised on
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the outstanding arrest warrant. First, ICE concluded that Sacal represented a danger to the community. (Record of Determination, Doc. 9-8, 4) Second, the outstanding arrest warrant created “exceptional, overriding factors (e.g., law enforcement interests or potential foreign policy consequences)” that precluded parole. (ICE Decision Ltr., Doc. 9-8, 2)
On March 18, 2020, Sacal’s counsel again requested that ICE release him due to his poor health and the COVID-19 pandemic. (Emails, Doc. 2, 2) Sacal’s counsel noted that the CAT proceedings would continue for many months, and that Sacal suffers from serious medical conditions. (Id.; see also Sacal’s Medical Records, Doc. 11-1 (diagnosing several health conditions)) Two days later, after an exchange of communications and information, ICE again denied the request: “We have carefully considered your request, and based on the totality of the facts in this case, [] we are denying your request at this time.” (Emails, Doc. 2, 1)
The parties agree that during most of Sacal’s time in detention, he has been held in the infirmary. (Petition, Doc. 1, ¶ 15; Response, Doc. 8, 7) Sacal does not allege that he has received inadequate care for his current medical conditions.
As of March 24, ICE had not confirmed any cases of COVID-19 in the Port Isabel Detention Center, including the infirmary in which Sacal has received care. (Decl. of Dr. Maribel Cantu, Doc. 9-9) Respondents submit evidence of the protective measures that ICE has implemented to reduce the risk of detainees contracting COVID-19. (Id.) II. Applicable Standard
Sacal seeks a temporary restraining order requiring his immediate release so that he may reside at a local shelter where he would receive ongoing medical care and have minimal contact with others. (Petition, Doc. 1, ¶ 1) He bases the request for emergency injunctive relief on his petition for writ of habeas corpus and a cause of action under the Administrative Procedure Act.
A temporary restraining order is an equitable remedy that may be granted only if the movant satisfies four requirements: “(1) a substantial likelihood of success on the merits; (2) a
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substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest.” Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246, 250 (5th Cir. 1997); see also Parker v. Ryan, 960 F.2d 543, 545 (5th Cir. 1992) (“[T]he requirements of rule 65 apply to all injunctions.”) (citing FED. R. CIV. P. 65). Failure to establish any of these elements results in the denial of the motion for injunctive relief. Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003) (citation omitted). Such relief is an extraordinary remedy that requires the applicant to unequivocally show the need for its issuance. See Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997) (citation omitted). III. Analysis
Based on the record before it and the applicable law, and for the following reasons, the Court concludes that Sacal has failed to demonstrate a substantial likelihood of success on either of his claims.3
A. Petition for Writ of Habeas Corpus An individual may seek habeas relief under 28 U.S.C. § 2241 if he is “in custody” under federal authority “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c). The “sole function” of a habeas petition is to “grant relief from unlawful imprisonment or custody.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976). The Fifth Circuit follows a bright-line rule: “If a favorable determination . . . would not automatically entitle [the detainee] to accelerated release, . . . the proper vehicle is a [civil rights] suit.” Carson v. Johnson, 112 F.3d 818, 820–21 (5th Cir. 1997) (internal citations omitted).
3 In light of the Court’s conclusion with respect to the first factor, the Court will not reach the remaining factors for a temporary restraining order. In addition, Respondents argue that Sacal lacks standing because his “claim of future injury is hypothetical”. (Response, Doc. 8, 7) The Court also does not reach this issue, but notes that Sacal need not await an actual injury (or illness, in this case) before bringing suit, but must show only that he faces an “unreasonable risk of serious damage to [his] future health”. Farmer v. Brennan, 511 U.S. 825, 843 (1994) (citation omitted).
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A district court possesses inherent authority to grant bail based on a petition for habeas relief, if doing so is required to protect the court’s ability to consider the petitioner’s claim that has been properly brought before it. But such authority is limited and reserved for unusual circumstances. The petitioner must demonstrate that the habeas petition raises substantial claims and that “extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001). Respondents contest that such authority exists in this case, arguing that Sacal “may only be released from § 1225(b) custody if the Secretary of the Department of Homeland Security (DHS) determines ‘on a case-by-case basis’ that ‘urgent humanitarian reasons or significant public benefit’ warrant the alien’s release on parole.” (Response, Doc. 8, 12 (citing 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 235.3(b)(2)(iii))) But Respondents’ argument misses the source of the authority. As applied to the present matter, this Court would not order Sacal’s release by finding that the Secretary of DHS should have done so under Section 1182, but only by finding that releasing Sacal is necessary to meaningfully consider Sacal’s Petition for Writ of Habeas Corpus and to maintain the possibility of providing effective habeas remedy, should the Court decide that such a remedy is warranted. Such inherent authority does not infringe on the Secretary of DHS’s discretion under Section 1182, but rather protects the Court’s power to provide meaningful relief based on a claim properly before it.
Still, to obtain emergency injunctive relief, a petitioner must satisfy the controlling requirements, including demonstrating a substantial likelihood of success on the merits of his claims. As a result, as applied to the present case, Sacal must demonstrate that his Petition for Writ of Habeas Corpus presents substantial claims on which Sacal possesses a substantial likelihood of succeeding, and that extraordinary circumstances exist that require his release to make any habeas remedy effective. He fails to meet this exacting standard.
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Sacal in his Petition does not present substantial claims on which he is likely to succeed. Importantly, “allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions.” Schipke v. Van Buren, 239 F. App'x 85, 85–86 (5th Cir. 2007) (citing Spina v. Aaron, 821 F.2d 1126, 1127–28 (5th Cir. 1987)). “Typically, habeas is used to challenge the fact or duration of confinement, and 42 U.S.C. § 1983 is used to challenge conditions of confinement.” Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017). District courts have applied these principles to deny a habeas petition based solely on alleged inadequate conditions of incarceration. See, e.g., Sarres Mendoza v. Barr, No. CV H-183012, 2019 WL 1227494, at *2 (S.D. Tex. Mar. 15, 2019) (denying a Honduran detainee’s motion for leave to amend because the proposed claims on “conditions of confinement may not be brought in a habeas corpus proceeding, and are actionable, if at all, in a civil rights action”); Morales-Corbala v. United States, No. P-11-CV-00025-RAJ, 2011 WL 13185995, at *3 (W.D. Tex. July 19, 2011), aff’d, 498 F. App’x 467 (5th Cir. 2012) (explaining that a habeas petition was improper as the plaintiff was not challenging the “constitutionality of his detention and [did] not ask the Court to release him from [the defendant’s] custody”).
At the core of his allegations, Sacal challenges the conditions of his confinement. Sacal alleges that “Respondents cannot prevent the Covid-19 virus from infecting” the detention center where he is detained. (Petition, Doc. 1, ¶ 16) He emphasizes that the Constitution requires the Respondents to provide “other safe conditions of confinement” (emphasis in original), and that they cannot do so. (Id. (quoting Bos. v. Lafayette Cty., Miss., 743 F. Supp. 462, 469 (N.D. Miss. 1990))) He contends that he will be exposed to COVID-19 via the medical staff or other detainees. (Supp. Reply, Doc. 13, 6) And he alleges that because of his failing health, “[c]ontinued detention . . . presents a clear and present danger to his fundamental right to life.” (Id.)
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Sacal effectively alleges that ICE’s inability to isolate him successfully, the movement of individuals within the detention facility, and the absence of adequate testing to identify carriers of the virus, all render it a certainty that he will contract the illness if maintained in custody. Those factors focus on the conditions of his confinement. A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.
Sacal argues that his case does not present the typical challenge to conditions of confinement because ICE cannot implement any set of protective measures to protect him from contracting and possibly dying from COVID-19. (Supp. Reply, Doc. 13, 3 (emphasis in original)) In his case, he argues, the impossibility of the detention center being able to protect him amounts to a violation of his constitutional due process right to be safe when detained by the government.
A detainee can establish a constitutional violation based on inadequate conditions of his confinement. But to do so, he must demonstrate that the officials acted with deliberate indifference to his medical needs or his safety. See, e.g., Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (applying the deliberate indifference standard to a cruel and unusual punishment claim); Baughman v. Garcia, 254 F. Supp. 3d 848, 868–69 (S.D. Tex. 2017), aff'd sub nom. Baughman v. Seale, 761 F. App'x 371 (5th Cir. 2019) (applying the deliberate indifference standard to a due process claim). “Deliberate indifference is shown only when ‘the official knows of and disregards an excessive risk to inmate health or safety . . . .’” Estate of Henson v. Krajca, 440 F. App'x 341, 344 (5th Cir. 2011) (quoting Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002)). Officials disregard a risk to an inmate when they have “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
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Here, the record does not demonstrate that Sacal is substantially likely to prove that ICE has acted with deliberate indifference with respect to Sacal’s health. On the contrary, the record reflects that ICE has provided constant medical attention to Sacal, and has implemented preventative measures to reduce the risk of Sacal contracting COVID-19. Those measures may ultimately prove insufficient. But the implementation of those measures preclude a finding that ICE has refused to care for Sacal or otherwise exhibited wanton disregard for his serious medical needs. In other words, Sacal has not demonstrated that the conditions in which ICE maintains him in custody arise to the level of a constitutional violation.
In addition, Sacal has not demonstrated a substantial likelihood of success on his fundamental argument—i.e., that the detention facility is incapable of protecting him from contracting COVID-19 or providing appropriate medical attention should he be infected. For these propositions, Sacal offers only conclusory arguments based on general articles regarding the highly-contagious nature of COVID-19 and its impact on the elderly and individuals with certain underlying medical conditions. (See Petition, Doc. 1, ¶ 16 (citing Staff Report, 2nd travel-related COVID-19 case in RGV confirmed in Harlingen, Valley Morning Star, Mar. 21, 2020, Doc. 2, 20); id. (citing Howard J. Luks, M.D., Covid-19 Update: 3/14/2020. A Message from Concerned Physicians, Howard J. Luks, M.D. Orthopedic Surgeon, Mar. 16, 2020, Doc. 2, 22-38); Coronavirus Reported in US Immigration Prisons, Associated Press, Mar. 26, 2020, Doc. 15-1, 2-9) But none of the exhibits concern the Port Isabel Detention Center, or even suggest that the measures ICE has implemented there are insufficient.
In addition, Respondents submit evidence of the protective measures they have undertaken to protect Sacal and other detainees. (See Decl. of Dr. Maribel Cantu, Doc. 9-9 (explaining that ICE has instituted applicable provisions of a pandemic workforce plan, suspended social visits in all detention facilities, and followed the testing guidelines of the Centers for Disease Control and Prevention (CDC))) Sacal presents no evidence that those
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measures are insufficient or deviate materially from CDC’s guidelines for institutions that detain individuals. See Interim Guidance on Management of Coronavirus Disease 2019 (Covid-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (last updated March 23, 2020).
In essence, Sacal contends that a high likelihood exists that many detainees in the Port Isabel Detention Center will contract COVID-19, and that for those who are elderly or suffer from underlying medical conditions that render them prone to the more serious aspects of the virus, the risk of death is significant. Sacal offers no evidence to support these propositions other than conclusions extrapolated from general information. And accepting Sacal’s reasoning would logically require the release of all individuals currently detained who are elderly or suffer from certain underlying medical conditions. The law does not require such a generalized result. The decisions by other district courts considering similar requests demonstrate the fact-specific nature of the analysis. See Vasif “Vincent” Basank, et al., v. Thomas Decker, et al., No. 20 Civ. 2518 (S.D.N.Y. Mar. 26, 2020), ECF No. 11 (ordering release of ten immigration detainees held in a county jail with confirmed cases of COVID-19); Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507 (ordering release of a detained immigrant held in a county jail with a confirmed case of COVID-19); United States of America v. Barry Allen Gabelman, No. 2:20-CR-19 JCM (NJK), 2020 WL 1430378, at *1 (D. Nev. Mar. 23, 2020) (denying motion to reconsider: “The court acknowledges that the spread of COVID-19 may be acutely possible in the penological context, but the court cannot release every detainee at risk of catching COVID-19 because the court would be obligated to release every detainee.”); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (denying request for temporary restraining order: “Plaintiffs do not show that ‘irreparable injury is likely
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in the absence of an injunction.’ [] The ‘possibility’ of harm is insufficient to warrant the extraordinary relief of a TRO.”).4
The Court recognizes that the COVID-19 pandemic presents an extraordinary and unique public-health risk to society, as evidenced by the unprecedented protective measures that local, state, and national governmental authorities have implemented to stem the spread of the virus. And it is possible that despite ICE’s best efforts, Sacal may be exposed and contract the virus. Moreover, Sacal’s age and medical condition render him particularly vulnerable to serious complications from the virus. But the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“Prison officials must provide humane conditions of confinement and must take reasonable measures to guarantee the safety of inmates.”). Sacal has not demonstrated his likelihood of proving that ICE has failed to take reasonable measures to guarantee his safety.
For these reasons, the Court finds that Sacal has not shown a substantial likelihood of success on the merits of his Petition for Writ of Habeas Corpus.
B. Administrative Procedure Act Sacal alleges that ICE’s denial of his request to be released from detention was “arbitrary, capricious, and an abuse of discretion”, in violation of the APA. (Petition, Doc. 1, 8) Respondents argue that the statute itself precludes review by this Court because ICE acted within its discretion under 8 U.S.C. § 1182(d)(5). The APA allows courts to set aside executive agency action that is arbitrary, capricious, or an abuse of discretion. See 5 U.S.C. § 706(2)(A). An agency runs afoul of this standard “if the
4 Sacal also references an Order from the United States Court of Appeals for the Ninth Circuit, in which the court sua sponte ordered the release of an immigration detainee. (Order, Doc. 7, 2) In that case, however, the circuit court appears to have been acting within its statutory jurisdiction in an appeal from a ruling by the Board of Immigration Appeals. And the circuit court provided no explanation for its Order. As a result, although the Order shows that courts recognize the threat that COVID-19 represents to detained individuals, it does not provide sufficient information to determine whether the facts of that matter bear resemblance to those before this Court.
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agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Tex. Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923, 933 (5th Cir. 1998) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The agency must “examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn., 463 U.S. at 43.
“If the agency's reasons and policy choices conform to minimal standards of rationality, then its actions are reasonable and must be upheld.” Tex. Oil & Gas Ass’n, 161 F.3d at 934. While a court can review an agency’s decision to determine whether it is arbitrary and capricious, the court “is not to substitute its judgment for that of the agency,” and should “uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281, 286 (1974); see also F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).
Section 702 of the APA waives the Government’s sovereign immunity in certain circumstances. First, the plaintiff “must identify some ‘agency action’ affecting him in a specific way, which is the basis of his entitlement to judicial review.” Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 489 (5th Cir. 2014) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990)). Second, the plaintiff must establish that he “suffered legal wrong because of the challenged agency action.” Lujan, 497 U.S. at 883. A plaintiff advancing such a claim seeks review “pursuant only to the general provisions of the APA.” Alabama-Coushatta Tribe of Texas, 757 F.3d at 489. In such an action, “[t]here must be ‘final agency action’ for a court to conclude that there was a waiver of sovereign immunity”. Id. (citing Lujan, 497 U.S. at 882). “If there is no final agency action, a federal court lacks subject matter jurisdiction.” Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (citation omitted).
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But judicial review under the APA is unavailable when other statutes “preclude judicial review” or when “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a); Texas v. United States, 787 F.3d 733, 755 (5th Cir. 2015). Both limitations apply in this case. As a result, Sacal has not demonstrated a substantial likelihood of success on his cause of action under the APA.
Subsection 1252(a)(2)(B)(ii) of the REAL ID Act expressly precludes judicial review of ICE’s decision whether to grant parole to an immigration detainee: “Notwithstanding any other provision of law (statutory or nonstatutory) . . . , no court shall have jurisdiction to review” any decision placed in the discretion of the Attorney General. The Fifth Circuit has applied this statutory language to preclude a district court’s jurisdiction to review a parole decision for an immigration detainee: “Congress, however, has denied the district court jurisdiction to adjudicate deprivations of the plaintiffs’ statutory and constitutional rights to parole.” LoaHerrera v. Trominski, 231 F.3d 984, 990-91 (5th Cir. 2000); see also Palacios v. Dep't of Homeland Sec., 407 F. Supp. 3d 691, 698 (S.D. Tex. 2019) (“[T]his court lacks jurisdiction to review denials of parole under the Immigration and Nationality Act because these actions are committed to agency discretion by law.”) (quotations omitted).
In addition, Title 8, United States Code, Section 1182(d)(5)(A) places the decision of granting parole within the discretion of DHS. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 491 n.1 (5th Cir. 2015). “Regulations provide further requirements and procedures” that DHS considers. Palacios, 407 F. Supp. 3d at 698 (citing 8 C.F.R. § 212.5). For example, to be paroled, an alien must present “neither a security risk nor a risk of absconding”. 8 C.F.R. § 212.5(b). In the present case, Respondents submit the internal documentation evidencing ICE’s exercise of its discretion with respect to Sacal. (See ICE Decision, Doc. 9-8). Because the applicable statute places this decision solely within DHS discretion, this Court lacks jurisdiction to review it.
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During the hearing on Sacal’s request for a temporary restraining order, his counsel argued that ICE did not deny parole based on Section 1182(d)(5)(A), but under ICE’s inherent authority to release those within its custody. Under this argument, according to Sacal’s counsel, the APA’s jurisdictional limitation in Section 701 would not apply, because no statute expressly removes the jurisdiction of federal district courts for decisions that ICE makes based on its inherent, as opposed to its statutory, authority. Respondents counter that outside of Section 1182, no authority exists for ICE to grant or deny parole to Sacal. The Court agrees. Sacal has not specified the source of the alleged authority on which ICE acted, and has not controverted ICE’s argument that the agency acted under Section 1182.
In addition, even if the Court possessed jurisdiction under the APA to review ICE’s decision, the Court would conclude that Sacal has not demonstrated a substantial likelihood of proving that ICE’s decision was arbitrary, capricious, or an abuse of discretion. In this matter, ICE exercised its discretion and declined to release Sacal based on two key findings, both premised on the uncontested facts that Sacal currently faces serious criminal charges in Mexico and that an arrest warrant remains pending against him in that country.5 Based on those uncontested facts, ICE concluded that Sacal represented a danger to the community. (ICE Decision-Form 71-013 (12/09), Doc. 9-8, 2) In addition, ICE found that the arrest warrant raised “law enforcement interests or potential foreign policy consequences” that represented “exceptional, overriding factors” militating against parole. (Id.) The Court concludes that in reaching its decision, ICE considered factors that Congress intended it to consider.
Sacal argues that the ICE officer failed to comply with the APA because in his final communication, he provided only the cursory conclusion that based on the “totality of the facts in this case”, ICE was denying the request for release. (Emails, Doc. 2, 2) But this argument ignores the entirety of the communications between ICE and Sacal’s counsel, and the internal
5 As previously indicated, Sacal vigorously denies those charges. He also presents evidence supporting his contention that family members have used their influence to persuade the Mexican government into pursuing false charges against him. But Sacal does not deny that the charges exist and that the arrest warrant remains outstanding.
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CaCsaes1e:210:2-0cv-c-0v-010036717D-WocGuYmeDnto1cu7meFnilet d41o-n1 03F/i2le7d/2004i/n03T/X20SDPaPgaeg1e41o4fo1f414 documentation detailing the factors that ICE considered. As a result, the fact that the final email from ICE did not detail all of its rationale does not render the decision arbitrary, capricious, or an abuse of discretion. IV. Conclusion
Based on the record before it, the Court concludes that Petitioner Jaime Sacal-Micha has not demonstrated a substantial likelihood of success on the merits on any of his claims. As a result, the Court declines to issue the requested temporary restraining order.
SIGNED this 27th day of March, 2020. _________________________________ Fernando Rodriguez, Jr. United States District Judge
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 Case 1:20-cv-10617-WGY Document 45 Filed 04/04/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION With the agreement of the Parties, the Court having determined that there is good cause for issuance of a protective order to govern the disclosure, use, and handling by the Parties and their respective agents, successors, personal representatives and assignees of certain information in the above-captioned action, IT IS HEREBY ORDERED as follows: 1. Private medical information produced by either Party during informal discovery or otherwise made available for the litigation will not be disseminated beyond the Counsel (including outside counsel) for the Parties, as defined to include associated personnel necessary to assist counsel in this Action, such as law student interns working under the supervision of counsel of record in this matter, litigation assistants, paralegals, and litigation support, information technology, information or records management, investigative, secretarial, or clerical personnel. 2. Such private medical information may be disclosed to experts or consultants for the Parties, provided the attorney of record first informs the expert that such information to be disclosed is confidential and to be used solely for the purpose of this litigation and further that
1

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these restrictions are imposed by a court order. 3. The Parties will redact all private medical information in any publicly-available
filings submitted to the Court.

Dated: April 4, 2020

_ /_s_/_W__il_li_a_m__G_._Y__o_u_n_g_______________ WILLIAM J. YOUNG UNITED STATES DISTRICT JUDGE

2

 
 Case 1:20-cv-10617-WGY Document 46 Filed 04/05/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-cv-10617-WGY

YOUNG, D.J.

April 5, 2020

ORDER

The order of submission of briefs on individual

applications for bail is as follows:

Tuesday, April 7, 2020, 9:00 a.m.
1. Montes-Santos, Pascual 2. Figueroa-Moralis, Julio 3. Smith, Donovan 4. James, Andrea 5. Thomas, Joko 6. Thomas, Akeim 7. Perez, Harlen 8. Sanchez-Lopez, Victor 9. Candelaria-Echegoyen, Hugo 10. Paul, Schnaider

Case 1:20-cv-10617-WGY Document 46 Filed 04/05/20 Page 2 of 3
Wednesday, April 8, 2020, 9:00 a.m.:
1. Nikiforidis, Georgios 2. Almanzar, Juan 3. Peguero-Vasquez, Victor 4. Kita Tshimanga, Antoni 5. Vargas, Cesar 6. Ferreira, Pamlar 7. Jaramillo-Quiroz, Hector 8. Al Amiri, Salim 9. Hussein, Hussien 10. Mota, Osvaldo
Thursday, April 9, 2020, 9:00 a.m.:
1. Ramirez-Maldanado, Ranferi 2. Rojas-Ceballos, Juan 3. Vasquez-Vasquez, Obed 4. Corleto, Kevin 5. Bengu Blocker, Thembelihle 6. Masimular, Thandokuhle 7. Arreaga, Marvin 8. Beltran-Araujo, Jose 9. Carangui, Carlos 10. Gutierrez-Deleon, Carlos
Friday, April 10, 2020, 9:00 a.m.:
1. Del Angel Moran, Gabino 2. Bonilla Ochoa, Jhony 3. Sanchez Disla, Army 4. De Sauza, Marcio 5. Sis Duarte, Carlos 6. Mahadeo, Kavon 7. Pesantez-Orellana, Edisson 8. Medeiros Neves Junio, Julio 9. Joseph, Desmond Lee 10. Jaramillo-Perez, Esteban
[2]

Case 1:20-cv-10617-WGY Document 46 Filed 04/05/20 Page 3 of 3
Monday, April 13, 2020, 9:00 a.m.: 1. Illicachi-Shigla, Juan 2. Reyes-Batista, Amaury Vladimir 3. Vasquez Aparicio, Deivis 4. Wafula, Lloyd 5. Carranza-Lopez, Miguel 6. Dias, Amiry 7. Ortega-Vasquez, Ricardo 8. Rivera Fernandez, Jose 9. Warwood, John 10. Ixcuna-Lucas, Miguel
SO ORDERED. _/s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE
[3]

 
 Case 1:20-cv-10617-WGY Document 57 Filed 04/08/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

MOTION FOR EXPEDITED INFORMAL DISCOVERY Plaintiffs respectfully request that this Court order Defendant to provide Plaintiffs with limited discovery on an expedited basis so that Plaintiffs can more fully aid in the Court’s consideration of the question to be considered at the upcoming hearing on Thursday, April 9, 2020: namely, “whether there is some number of detainees who might occupy the facility and yet be adequately spaced.” See ECF 55. Without the basic discovery that Plaintiffs seek—which Defendant should be able to easily provide—Plaintiffs will be materially prejudiced in their ability to respond to Defendant’s assertions. The Court should have the benefit of Plaintiffs’ informed position, particularly given that Defendant’s position has always been that there was no need to release anyone. The Court should have the benefit of the adversary process when Defendants inevitably take the same position at Thursday’s hearing. Accordingly, Plaintiffs request certain discrete information from Defendant that will help illuminate the question that the Court has posed and enable Plaintiffs to participate at the hearing

Case 1:20-cv-10617-WGY Document 57 Filed 04/08/20 Page 2 of 5
on equal footing as Defendants. In addition to any other information the Court would find helpful, Plaintiffs request that Defendant provide them with the following documents:
1. Documents sufficient to show the dimensions of class members’ beds/bunks, including the vertical and horizontal space between beds/bunks;
2. Documents sufficient to show the dimensions of all dining areas, bathrooms, and recreational or common areas to which class members have access;
3. Documents sufficient to show the protocol for testing detainees and staff for COVID-19;
4. Documents sufficient to show the protocol for cleaning of all areas to which class members have access;
5. Documents sufficient to show the dimensions of the medical unit to which class members have access, number of beds, dimensions of rooms, number of medical staff, number of ventilators, amount of available personal protective equipment; and
6. All documents that may have been provided to the Court in camera in response to the Court’s request for “pictures/plans of facility.” See ECF 27.
These documents can be gathered quickly and without undue burden. Moreover, to the extent Defendant has any concern about confidentiality, Defendant may designate the documents as confidential under the same terms as the Protective Order that the Court has already entered.
This information will also enable Plaintiffs to consult with their experts and respond to the Court’s request for “[t]he views of physicians and public health professionals.” Plaintiffs hope to provide the Court with such views, and the information Plaintiffs seek from Defendant on facility space would aid in that endeavor.
Plaintiffs raise this issue directly with the Court because of the short time before Thursday’s hearing, and because Plaintiffs’ past efforts to obtain discovery on an informal,
2

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cooperative basis have not been successful.1 Plaintiffs reached out to Defendants regarding this motion on the evening of April 7, 2020, but in light of the timing and urgency, the parties were unable to meet and confer prior to filing.
There is also good cause to order this discovery on an expedited basis. See, e.g., Jimenez v. Nielsen, 326 F.R.D. 357, 361 (D. Mass. 2018) (allowing expedited discovery into ICE detention practices). "The First Circuit has not addressed the proper standard for determining whether good cause exists for expedited discovery; Judges of this Court have allowed it in a variety of circumstances." Patrick Collins, Inc. v. Does 1-79, 286 F.R.D. 160, 163 (D. Mass. 2012). Reasonableness in light of the circumstances—including the possibility of irreparable harm, the negligible burden on the defendant, the purpose of the discovery, and the Court’s urgent need to be able to assess these issues—is the touchstone of good cause. See Jimenez, 326 F.R.D. at 361. Expedited discovery requests should be narrowly tailored to address immediate issues and asserted irreparable harm. See id. The risk of irreparable harm to those inside BCHOC is apparent, the purpose of the discovery is to aid the Court in making its decision about the propriety of continued detention, and the burden on the Defendant (who is in full control of the facility, which Plaintiffs cannot otherwise access) is low. Further, the requests outlined above are narrowly tailored to provide the Court with the information it requested in ECF 55.
For the foregoing reasons, the motion should be granted, and Defendant should be ordered to provide Plaintiffs the documents listed above by 2:00 p.m. on Wednesday, April 8, 2020. In the alternative, if Defendant requires more time to produce the requested documents,
1 Plaintiffs made limited informal discovery requests on March 30, 2020, the day that the Court ordered “full disclosure and cooperation with any informal discovery,” ECF 27, but Defendant has thus far not responded to these requests.
3

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Plaintiffs request that Defendant be required to produce them by 2:00 p.m. on Thursday, April 9, 2020, and that the currently-scheduled hearing be continued until the following day.

April 7, 2020 Respectfully Submitted,

/s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319)
Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
B. Rey, Law Student Intern* Megan Yan, Law Student Intern*
Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org

† Admitted pro hace vice.
4

Case 1:20-cv-10617-WGY Document 57 Filed 04/08/20 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that, on April 7, 2020 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system. Date: April 7, 2020 __/s/ Oren Sellstrom_______________ Oren Sellstrom (BBO #569045)
5

 
 Case 1:20-cv-10617-WGY Document 64 Filed 04/08/20 Page 1 of 29

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA, Superintendent of )

Bristol County House of Corrections)

in his official capacity,

)

)

Respondent. )

)

CIVIL ACTION NO. 20-10617-WGY

YOUNG, D.J.

April 8, 2020

MEMORANDUM & ORDER

I. INTRODUCTION

This habeas petition reflects the petitioners’ dire

personal circumstances and legal grievances. Yet it also speaks

to the shared anxieties of a world brought to its knees by the

pandemic of the novel coronavirus, dubbed COVID-19. It reaches

the Court at an especially grim moment.1 The petitioners are

civil immigration detainees who say they are held in tight

quarters and unable to keep safe distance from others who may --

1 See Sarah Westwood, Surgeon General: This Week Will Be Like a ‘Pearl Harbor’ and ‘9/11’ Moment, CNN (Apr. 5, 2020 1:25 pm), https://www.cnn.com/2020/04/05/politics/jerome-adamscoronavirus/index.html.

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and with time, inevitably will -- carry the highly contagious virus. They demand release or implementation of social distancing and other hygienic practices recommended by infectious disease experts.
Pending before this Court are their petition for a writ of habeas corpus, their motion for class certification, and their motion for a preliminary injunction. The Court is not yet ready to rule on the underlying habeas petition or the motion for a preliminary injunction. Rather, the Court ALLOWS the motion for class certification, with slight modification, and takes this opportunity to explain its reasoning with respect to bail. For the health and safety of the petitioners -- as well as the other inmates, staff, and the public –- the Court will expeditiously consider bail for appropriate detainees.
A. Factual Background The named petitioners are two of approximately 148 individuals (the “Detainees”) detained by Immigration and Customs Enforcement (“ICE”) on civil immigration charges and held at the Bristol County House of Corrections (“BCHOC”) in North Dartmouth, Massachusetts. Pet. Writ Habeas Corpus (“Pet.”) ¶ 1, ECF No. 1; Opp’n Mot. TRO (“Opp’n”), Ex. A, Aff. Sheriff Thomas H. Hodgson (“Hodgson Aff.”) ¶ 6(o), ECF No. 26-1.2
2 Though Sheriff Hodgson’s affidavit, dated March 29, 2020, states that there are 148 ICE detainees in the BCHOC, the
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The Detainees are held in two on-site facilities: ninety-two are in a separate ICE facility called the C. Carlos Carreiro Immigration Detention Center (“Carreiro”), and the rest are housed in a portion of the BHCOC called “Unit B” together with non-immigration pre-trial detainees. Id.; Pet. ¶ 1; Opp’n 2.3
Since February, the respondent (“the government”) asserts, the medical team and administration of BCHOC “have instituted strict protocols to keep inmates, detainees and staff safe and take all prudent measures to prevent exposure to the COVID- 19 infection.” Hogdson Aff. ¶ 5. Entrance into the facilities by outsiders is now generally prohibited; attorneys, clergy, and staff are “medically screened prior to entrance by questions relating to COVID-19 symptoms and by body temperature assessment.” Id. ¶ 6(a)-(d). Inmates and detainees who are over 60-years-old or are immuno-compromised “are being specially monitored.” Id. ¶ 6(k). In addition:
All housing units are sanitized no less than three times per day. Fresh air is constantly circulated by opening windows and utilizing handler/vents throughout the day. All feeding is done inside the housing or
government provided the Court (in a submission dated April 1, 2020) with a list of 147 names received from ICE that it represented as a complete roster of ICE detainees at BCHOC. The Court expects that this discrepancy be cleared up quickly.
3 The government explains that “[o]nly detainees who have been classified by ICE as high risk, typically based upon violent behavior (and not in any way related to COVID-19), are housed with non-immigration pre-trial inmates, but this is not in the general population.” Opp’n 2.
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cells and inmates do not congregate for meals in the main dining hall. Outside recreation is done as usual daily except that it is now done on split schedule to prevent close inmate-to-inmate contact. Id. ¶ 6(f). According to BCHOC’s medical director, Dr. Nicholas J. Rencricca, “we are doing all that we can to reduce the risk of a COVID-19 outbreak within BCHOC.” Aff. Nicholas J. Rencricca, MD, PhD ¶ 24. As of April 8, 2020, “there have been no inmates or immigration detainees who have presented with, or have tested positive for, COVID-19” at BCHOC, though one “unit intake nurse tested positive for COVID-19” and she last showed up to work on March 24. Decl. Debra Jezard ¶ 8; Def.’s Input Apr. 8 List 1, ECF No. 58. The Detainees dispute much of this. They allege, for instance, that “BCHOC facilities lack adequate soap, toilet paper, and medical resources and infrastructure to address the spread of infectious disease or to treat people most vulnerable to illness.” Pet. ¶ 70. They also state that “[h]ygiene is . . . unavailable and unavailing under the[ir] conditions,” id. ¶ 6, and that they “are unaware of any meaningful safety measures enacted by Defendants since the inception of this crisis,” id. ¶ 28. Their “confinement conditions are a tinderbox,” the Detainees warn, “that once sparked will engulf the facility.” Id. ¶ 29. Yet there are important aspects of the Detainees’
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allegations that are substantially undisputed. Chief among these is the challenge of social distancing in BCHOC.
The Centers for Disease Control and Prevention (“CDC”) states that “COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period,” and therefore recommends that everyone practice “social distancing” -- even among those with no symptoms, since the virus can be spread by asymptomatic people. CDC, Social Distancing, Quarantine, and Isolation (reviewed Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html (last accessed Apr. 6, 2020). The CDC thus advises that everyone “[s]tay at least 6 feet (2 meters) from other people.” Id. The CDC has issued guidance specifically for prisons and detention centers that beat the same drum. CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, at 4 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf (“Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.”); id. (“Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce
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the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic).”).
The Detainees assert that they “find it impossible to maintain the recommended distance of 6 feet from others” and they “must also share or touch objects used by others.” Pet. ¶ 67. They specifically allege that their beds “are situated only 3 feet apart” and that “[m]eals are inadequate and eaten in close quarters.” Pet. ¶ 68. Indeed, the government has provided the Court with photos of the sleeping quarters in the facility and this appears to be an accurate description.4 In one unit the “cell size” is listed as 30 feet by 10 feet (300 square feet), and the photo shows three bunk beds (sleeping six people) lining the wall. Other images supplied include a photo labeled “Bunk Area” that shows a large room packed with rows of bunk beds. None appears to enjoy anything close to six feet of isolation. One of the named petitioners, Mr. Neves, avers that he “is being held in the same room as 49 other people,” that his “bed is too close to other people,” and that he is “not able to
4 The government protests that “not every bed is filled and the minimal distance is believed to be between ends, not the long sides of beds.” Def.’s Suppl. Br. 9 n.6, ECF No. 41. The CDC’s guidelines are concerned with people, not furniture, so the Court does not see what bearing the government’s distinction (whether the beds are measured from their length or width) has upon the safety of the Detainees.
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engage in ‘social distancing.’” TRO Mem., Ex. 8, Decl. Julio Cesar Medeiros Neves ¶¶ 4-6, ECF No. 12-8.
The COVID-19 global pandemic threatens all of us. Yet “[t]he combination of a dense and highly transient detained population presents unique challenges for ICE efforts to mitigate the risk of infection and transmission.” Opp’n, Ex. 2, Memorandum from Enrique M. Lucero, ICE, to Detention Wardens & Superintendents 1 (Mar. 27, 2020), ECF No. 26-2. As the Supreme Judicial Court of Massachusetts recently explained in reference to statewide correctional facilities, including BCHOC, “correctional institutions face unique difficulties in keeping their populations safe during this pandemic.” Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, No. SJC-12926, 2020 WL 1659939, at *3 (Mass. Apr. 3, 2020). Indeed, BCHOC’s medical director acknowledged the obvious fact “that a prison setting poses particular challenges from an infectious disease standpoint,” while asserting that “the risk of infection is tempered by the degree of control we have over access to the facility.” Renricca Aff. ¶ 21.
The Detainees have provided affidavits from two physicians who have recently visited Detainees on site. Dr. Nathan Praschan of Massachusetts General Hospital states that “[t]he best-known methods of preventing infectious spread,” such as “social distancing, frequent hand washing, and sanitation of
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surfaces . . . are unavailable to . . . [these] detainees, who sleep, eat, and recreate in extremely close quarters and do not have access to basic hygienic supplies.” Decl. Dr. Nathan Praschan ¶ 9. Dr. Matthew Gartland of Brigham and Women’s Hospital avers that “based on my own experience visiting Bristol County House of Corrections, I do not believe that . . . [these] detainees, can be adequately protected from the virus that causes COVID-19. This is based on a lack of private sinks or showers and inadequate hand soap supplies, and hand sanitizers, as well as inadequate allowance for social distancing, screening for symptoms and exposure to the virus, testing of individuals with symptoms, and appropriate quarantine and isolation facilities.” Decl. Dr. Matthew Gartland ¶ 16.
B. Procedural History The Detainees filed a habeas petition as a putative class action in this Court on March 27, 2020. Pet. The petition asserts two claims: (1) violation of due process as a result of confinement in conditions “that include the imminent risk of contracting COVID-19,” id. ¶¶ 98-105; and (2) violation of section 504 of the Rehabilitation Act for failure to provide reasonable accommodations, in the form of protection against COVID-19, to Detainees with medical conditions, id. ¶¶ 105-116. On the same day, the Detainees filed a motion for a temporary restraining order (“TRO”), ECF No. 11, and a motion
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for class certification, ECF No. 13. As these motions refer only to the due process claim, the Detainees do not seek a TRO or class certification for their claim under the Rehabilitation Act. See Mem. Supp. Mot. Temporary Restraining Order (“TRO Mem.”), ECF No. 12; Mem. Supp. Pls.’ Mot. Class Cert. (“Class Cert. Mem.”), ECF No. 14; Reply Resp.-Def.’s Opp’n Mot. TRO (“Pet’rs’ Reply”) 16 n.6. The Government has opposed both motions. See Opp’n; Def.’s Suppl. Br., ECF No. 41.
The Court held an initial hearing on March 30, 2020, converting the motion for a TRO into a motion for a preliminary injunction.5 ECF No. 27. At the next hearing, on April 2, 2020, the Court provisionally certified five subclasses and took the other matters under advisement. Electronic Clerk’s Notes, ECF No. 36; see Order, ECF No. 38 (listing twelve members of first subclass). The following day, the Court held another hearing at which it was informed that the Government voluntarily agreed to release six members of the first subclass. The Court deemed the case moot as to those individuals, ordered release on bail under certain conditions for three other members of the subclass,6 and
5 All hearings in this matter have been held remotely by video conference in light of the danger posed by COVID-19.
6 The bail order was as follows: The Court grants bail to Henry Urbina Rivas, Robson Maria-De Oliveira, and Jervis Vernon pending resolution of the habeas corpus petition, upon all
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either denied bail without prejudice or continued the matter for the rest of the subclass. Order, ECF No. 44. The Court notified the parties that it would consider bail for fifty additional detainees, id. ¶ 6, and later set a schedule for considering those fifty individual bail applications at a rate of ten per day beginning on April 7, 2020. Order, ECF No. 46. It has since ordered bail for several more Detainees. See ECF Nos. 54-55.

bail conditions deemed appropriate and imposed by ICE, and the following additional terms and conditions as to each of them: (a) release only to an acceptable custodian; (b) such custodian will pick the releasee up outside the facility by car; (c) releasee will be taken from the facility to the place of residence previously identified to ICE (ICE shall notify the state and local law enforcement authorities about their presence and the[] details of their bail status); (d) releasees are to be fully quarantined for 14 days from date leaving facility to the residence; (e) during and after the 14-day quarantine, releasees will remain under house arrest, without electronic monitoring, and shall not . . . leave the residence for any reason save to attend immigration proceedings or attend to their own medical needs should those needs be so severe that they have to go to a doctor’s office or hospital (in which case they shall notify ICE as soon as practicable of their medical necessity); (f) releasees are not to be arrested by ICE officers unless: (i) upon probable cause a warrant is issued by a United States Magistrate Judge or United States District Judge that they have violated any terms of their bail, or (ii) there is a final order of removal making them presently removable from the United States within two weeks. The Court may, sua sponte or on motion of the parties, modify or revoke the bail provided herein.

Order ¶ 2, ECF No. 44.

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II. ANALYSIS This opinion tackles three issues. First, the Court
rejects the government’s argument that the Detainees lack Article III standing because their risk of injury is too speculative. Next, the Court certifies a general class of Detainees for their due process claim of deliberate indifference to a substantial risk of serious harm. Though there are indeed pertinent and meaningful distinctions among the various Detainees, there is a common question of unconstitutional overcrowding that binds the class together. Nor, contrary to the government’s assertion, is there a statutory bar to class certification in this case. Finally, the Court explains its rulings and authority in ordering bail for certain Detainees.
A. Article III Standing To satisfy constitutional standing in federal court, a habeas petitioner (like other litigants) “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). The government argues the Detainees’ “claims of future injury are hypothetical” and “conjectural” because “crowding in and of itself does not cause COVID-19 infection if none in the group has contracted COVID-19.” Opp’n 15.
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The Court disagrees. The Supreme Court has held that
“future injuries” may support standing “if the threatened injury
is certainly impending, or there is a substantial risk that the
harm will occur.” Department of Commerce v. New York, 139 S.
Ct. 2551, 2565 (2019) (quoting Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014)). In this moment of
worldwide peril from a highly contagious pathogen, the
government cannot credibly argue that the Detainees face no
“substantial risk” of harm (if not “certainly impending”) from
being confined in close quarters in defiance of the sound
medical advice that all other segments of society now
scrupulously observe.7 See TRO Mem., Ex. 1, Decl. Alan S.
Keller, M.D. ¶ 10, ECF No. 12-1 (“[T]he risk of COVID-19
infection and spread in immigration detention facilities,
7 Amazingly, the government appears to make this argument. At the April 2 hearing, the government emphasized that no Detainee or inmate in BCHOC has yet tested positive for COVID-19 and argued that “if the Court starts from the position that the Court’s goal here is to reduce the concentration of inmates it has jumped past the presence, or non-presence, of the virus to an assumption that the virus is present and therefore we’re going to do everything we can to increase social distancing.” In a later filing the government reiterated the point: “It is ICE’s position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC.” Defs.’ Input Regarding Apr. 7 List 1, ECF No. 50. Yet the government’s quarrel is not with the Court but with the vigorous recommendations of infectious disease experts worldwide, including in the federal government, to maximize social distancing.
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including Bristol County, is extremely high.”). This risk of injury is traceable to the government’s act of confining the Detainees in close quarters and would of course be redressable by a judicial order of release or other ameliorative relief.
Accordingly, the Court rules that the Detainees easily meet Article III’s standing requirements.
B. Class Certification The Detainees moved to certify the following proposed class: “All civil immigration detainees who are now or will be held by Respondents-Defendants at the Bristol County House of Corrections (BCHOC) and the C. Carlos Carreiro Immigration Detention Center (“Carreiro”) in North Dartmouth, Massachusetts.” Class Cert. Mem. 9. At the hearing on April 2, 2020, the Court declined to certify the class as proposed but provisionally certified five subclasses. Electronic Clerk’s Notes, ECF No. 36.8 The Court does not now revisit that
8 The Court described the five provisionally certified subclasses as follows:
Group 1: Detainees with no criminal record and no pending criminal charges.
Group 2: Detainees with medical conditions recognized under the CDC guidelines as heightening their risk of harm from COVID19 and who have minor, non-violent criminal records or minor, non-violent criminal charges pending.
Group 3: Detainees without the medical conditions of Group 2 but who likewise have minor criminal records or minor, primarily non-violent criminal charges pending.
Group 4: Detainees with pending criminal charges against them for violent crimes, either in the United States or abroad.
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provisional ruling.9 Yet it does, for the reasons given below,
now certify the general class as proposed by the Detainees,
albeit excluding those not yet in custody.
1. Bar on Classwide Injunction in Immigration Matters
The government first argues that the proposed class cannot
be certified because 8 U.S.C. § 1252(f)(1) bars courts (other
than the Supreme Court) from enjoining or restraining the
“operation” of immigration enforcements actions except in their
application to “an individual alien against whom proceedings
under such chapter have been initiated.” Opp’n 9. The
government cites dicta from Reno v. American Arab Anti-
Discrimination Comm. indicating that classwide injunctive relief
Group 5: Detainees with criminal convictions for violent crimes, either in the United States or abroad.
9 The government argues, without citation to authority, that “Rule 23(c)(5) requires that there be a class first before subclasses are created.” Def.’s Suppl. Br. 8. The Court has found only one judicial opinion seemingly endorsing that view, Sprague v. General Motors Corp., 133 F.3d 388, 399 n.9 (6th Cir. 1998) (en banc), while the Eleventh Circuit disagrees, Klay v. Humana, Inc., 382 F.3d 1241, 1261–62 (11th Cir. 2004). See 3 William B. Rubenstein, Newberg on Class Actions § 7:29 n.1 (5th ed. 2019) (citing circuit split); Scott Dodson, Subclassing, 27 Cardozo L. Rev. 2351, 2389 (2006) (concluding that “the best interpretation” of Fed. R. Civ. P. 23 allows subclasses to be certified in the absence of a valid general class). The First Circuit recently suggested that “[t]he commonality standard might also be satisfied in some cases by certifying subclasses.” Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 29 n.15 (1st Cir. 2019) (citing Mark C. Weber, IDEA Class Actions After Wal-Mart v. Dukes, 45 U. Tol. L. Rev. 471, 498-500 (2014)). In any case, because the Court now certifies the general class, the question is academic.
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is simply not available in immigration cases. 525 U.S. 471, 481-82 (1999) (describing § 1252(f) as “prohibit[ing] federal courts from granting classwide injunctive relief against the operation of [8 U.S.C.] §§ 1221–1231”). Thus, the government appears to argue, the Court cannot certify this class now because it will not later be able to provide classwide relief.
Yet section 1252(f) says nothing about declaratory relief, which the Detainees expressly request here in addition to injunctive relief. Pet. 24. Accordingly, this provision does not bar declaratory relief and therefore poses no obstacle to class certification. See Reid v. Donelan, 390 F. Supp. 3d 201, 226 (D. Mass. 2019) (Saris, C.J.); Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018); Alli v. Decker, 650 F.3d 1007, 1014 (3d Cir. 2011). Seeking to avoid this conclusion, the government cites a Sixth Circuit decision for the proposition that declaratory relief may be the “functional equivalent” of a prohibited classwide injunction. Opp’n 11 (quoting Hamama v. Adducci, 912 F.3d 869, 880 n.8 (6th Cir. 2018)). The Sixth Circuit opinion was issued after three Justices argued to the contrary in Jennings v. Rodriguez, 138 S. Ct. 830, 876 (2018) (Breyer, J., dissenting), but before three other Justices agreed, see Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality opinion). With six Justices of the current Supreme Court now on record stating that section 1252(f) does not bar
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declaratory relief, and because that is the better reading of the statute, the Court adheres to that view. See Reid, 390 F. Supp. 3d at 226; Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *7-8 (D. Mass. Oct. 23, 2018) (Saris, C.J.).
This is not to suggest that injunctive relief will be categorically unavailable in this case. See Marin, 909 F.3d at 256 (allowing a classwide injunction when all members of the class were individuals against whom detention proceedings had been initiated, in accordance with the exception contained in section 1252(f)(1)). Nor does the Court intimate that it will eventually provide any relief at all, since it has not yet reached the merits. At this class certification stage, it is enough to establish that the Court could provide a classwide remedy in the form of a declaratory judgment or injunctive relief. Having established that, the Court rejects the government’s argument that section 1252(f) precludes class certification.
2. The Requirements of Rule 23 “To obtain class certification, the plaintiff must establish the four elements of [Fed. R. Civ. P.] 23(a) and one of several elements of Rule 23(b).” Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997)). Rule 23(a) permits class certification only if:
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(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). In addition to establishing these four elements, the Detainees must satisfy one of Rule 23(b)’s categories. The Detainees rely on Rule 23(b)(2), Class Cert. Mem. 16-17, which permits class certification when “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). Since numerosity and adequacy appear well-founded, the government challenges only the commonality and typicality of the proposed class. Opp’n 13 (“The proposed class lacks uniformity and the Plaintiffs are not representative of the proposed class members.”). Though commonality and typicality are distinct elements under Rule 23(a), the Supreme Court has repeatedly recognized that they “tend to merge.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011) (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Indeed, the government attacks both commonality and typicality with the same set of arguments. The gist of the government’s contention on
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this score is that the various detainees are not “similarly situated” because they “are of different ages and all present different levels of health at this time.” Opp’n 12. Furthermore, the government points out that some detainees are subject to statutorily mandated detention while others are not, and that “each detainee presents a different risk of flight and/or public safety threat if released.” Id. Accordingly, the Court treats commonality and typicality together.
To establish commonality under Rule 23(a)(2), one common question is enough. Wal-Mart, 564 U.S. at 359. “A question is common if it is ‘capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 28 (1st Cir. 2019) (quoting Wal-Mart, 564 U.S. at 350). It is not critical whether common “questions” are raised; the decisive factor is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Wal-Mart, 564 U.S. at 350).
The Detainees frame the common question as follows: “Whether the conditions of confinement at Bristol County Immigration Detention Facilities, under the current conditions and in light of the COVID-19 pandemic, render class members’
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confinement a punishment that violates constitutional standards.” Class Cert. Mem. 18-19. Here, as is typical in the Rule 23 commonality inquiry, “proof of commonality necessarily overlaps with [the Detainees’] merits contention.” Wal-Mart, 564 U.S. at 352. Accordingly, the Court now discusses the merits of the Detainees’ constitutional claim, but only to the extent necessary to decide the class certification question. See Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Merits questions may be considered to the extent -- but only to the extent -- that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”).
When the government “so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses . . . the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). The due process guarantee of the Constitution obliges the government “to refrain at least from treating a pretrial detainee with deliberate indifference to a substantial risk of serious harm to health.” Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) & Farmer v. Brennan, 511
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U.S. 825, 835 (1994)). “Proof of deliberate indifference requires a showing of greater culpability than negligence but less than a purpose to do harm,” id. (citing Farmer, 511 U.S. at 835), “and it may consist of showing a conscious failure to provide medical services where they would be reasonably appropriate,” id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “To show such a state of mind, the plaintiff must provide evidence that the defendant had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Leite v. Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018) (quoting Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018) (further citation and internal quotation marks omitted). “This standard, requiring an actual, subjective appreciation of risk, has been likened to the standard for determining criminal recklessness.” Id. at 53 (quoting Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)). Courts generally apply the same standard for civil immigration detainees as for pre-trial detainees. See E. D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019) (stating that “the legal rights of an immigration detainee [are] analogous to those of a pretrial detainee” and collecting cases of other circuits).
With this legal background in mind, it is understandable why the government highlights the differences among the Detainees. For example, it may be easier for Detainees who are
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at heightened risk of harm from COVID-19 to prove the “substantial risk of serious harm” prong of the inquiry than it will be for healthier Detainees who lack special risk factors. Detainees with a serious criminal background might have a tougher time demonstrating that the government could “have easily prevented that harm” by releasing them on bond, for instance. Indeed, these very considerations guided the Court in provisionally certifying five separate subclasses.
Upon reflection, however, the Court determines that the admittedly significant variation among the Detainees does not defeat commonality or typicality. At bottom, a common question of law and fact in this case is whether the government must modify the conditions of confinement -- or, failing that, release a critical mass of Detainees -- such that social distancing will be possible and all those held in the facility will not face a constitutionally violative “substantial risk of serious harm.” Farmer, 511 U.S. at 847. Crucial to the Court’s determination is the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely dangerous to all of us.
Consider recent data from the CDC. In a sample of COVID-19 patients aged 19 and older with no underlying health conditions
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or risk factors, approximately 7.2-7.8% were hospitalized without requiring admission to the Intensive Care Unit (“ICU”), and an additional 2.2-2.4% were hospitalized in the ICU, totaling 9.6-10.4%. If the pool is restricted to patients between the ages of 19 and 64, all with no underlying health conditions reported, approximately 6.2-6.7% were hospitalized without admission to the ICU, and an additional 1.8-2.0% required the ICU, for a total hospitalization rate of 8-8.7%. The rates of hospitalization and ICU admittance are significantly higher for those with underlying health conditions.10 Since COVID-19 is highly contagious and the quarters are close, the Detainees’ chances of infection are great. Once infected, taking hospitalization as a marker of “serious harm,” it is apparent that even the young and otherwise healthy detainees face a “substantial risk” (between five and ten percent) of such harm.
Likewise, the “deliberate indifference” part of the inquiry, which asks whether the government “disregards th[e]
10 See Nancy Chow et al., CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, 69 Morbidity & Mortality Weekly Report 382, 382-84 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6913e2-H.pdf. It must be emphasized that this data is partial and preliminary. See id. at 384-85 (listing six limitations on the report’s findings).
[22]

Case 1:20-cv-10617-WGY Document 64 Filed 04/08/20 Page 23 of 29
risk by failing to take reasonable measures to abate it,” Farmer, 511 U.S. at 847, is apt to generate a common answer for the entire class of Detainees. The question is not so much whether any particular Detainee should be released -- a matter as to which the various individuals are surely differently situated. Rather, the question is whether the government is taking reasonable steps to identify those Detainees who may be released in order to protect everyone from the impending threat of mass contagion. Nor does it matter how the density of Detainees is reduced. Transfer to less crowded facility, deportation, release on bond, or simply declining to contest lawful residence -- any of these methods would effectively minimize the concentration of people in the facility. This affords the government greater flexibility and minimizes the differences among the various Detainees.
The case law supports a finding of commonality for class claims against dangerous detention conditions, even when some detainees are more at risk than others. For example, the Ninth Circuit affirmed class certification for an Eighth Amendment challenge to inmate medical care policies, explaining that “although a presently existing risk may ultimately result in different future harm for different inmates -- ranging from no harm at all to death -- every inmate suffers exactly the same constitutional injury when he is exposed to a single statewide
[23]

Case 1:20-cv-10617-WGY Document 64 Filed 04/08/20 Page 24 of 29
[department of corrections] policy or practice that creates a substantial risk of serious harm.” Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014). Similarly, the Fifth Circuit affirmed class certification of all prisoners in an overheated prison, despite the variations in health and risk among prisoners, because the prison authority’s “heat-mitigation measures . . . were ineffective to reduce the risk of serious harm to a constitutionally permissible level for any inmate, including the healthy inmates.” Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017). Here, too, even the otherwise healthy Detainees face a substantial risk of serious harm from COVID-19. The commonality analysis of Parsons and Yates is persuasive and has been approvingly cited by the First Circuit. See Parent/Professional, 934 F.3d at 28 n.14. Accordingly, the Court rules that the commonality and typicality prongs of the Rule 23(a) analysis are satisfied.
Before certifying the class, the Court pauses to consider the uniformity of remedy required by Rule 23(b)(2). See WalMart, 564 U.S. at 360 (holding that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.”). Thus, the Court may certify the class
[24]

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only if it would be entitled to an “indivisible” remedy. Id. The Court concludes that a uniform remedy would be possible in this case, whether in the form of declaratory relief or (depending on the proper reading of 8 U.S.C. § 1252(f), as alluded to above) an injunction ordering the government to reduce crowding of Detainees. Cf. Brown v. Plata, 563 U.S. 493, 502 (2011) (affirming classwide injunction of “court-mandated population limit” in state prisons to remedy Eighth Amendment violations due to “severe and pervasive overcrowding”).
Thus, the requirements of Rule 23 are met and the Court certifies the general class as proposed by the Detainees, with one caveat: The Court declines to include those who “will be held,” Class Cert. Mem. 9, but are not yet in custody. Although the government has not declared that it will not admit more detainees to BCHOC during this health crisis, it has agreed to notify the Court before doing so. Tr. Hr’g 25, ECF No. 48. The Court sees no need to include possible future detainees in this class. Moreover, since the situation is rapidly evolving and future detainees may well be subject to different confinement conditions than those now obtaining, it may be that the named representative cannot “fairly and adequately protect the interests” of those future detainees. Fed. R. Civ. P. 23(a)(4); cf. Amchem, 521 U.S. at 625-26 (holding that differences between
[25]

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currently injured and not-yet-injured members of proposed class defeated adequacy requirement).
C. The Court’s Inherent Authority to Order Bail The Court now turns to explain its decision to order bail for several Detainees and to consider bail applications for others. The First Circuit has explained “that a district court entertaining a petition for habeas corpus has inherent power to release the petitioner pending determination of the merits.” Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). Such authority may be exercised in the case of “a health emergency,” where the petitioner has also demonstrated a likelihood of success on the merits. Id. For example, Woodcock approvingly cited Johnston v. Marsh, in which the Third Circuit affirmed the decision of the district court granting bail to a habeas petitioner who, “as an advanced diabetic, was, under conditions of confinement, rapidly progressing toward total blindness.” 227 F.2d 528, 529-32 (3d Cir. 1955). In Mapp v. Reno, the Second Circuit held that “the federal courts have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal habeas case.” 241 F.3d 221, 223 (2d Cir. 2001). A court considering bail for a habeas petitioner “must inquire into whether ‘the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[] that make the grant of bail necessary to
[26]

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make the habeas remedy effective.’” Id. at 230 (alterations in original) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
Other courts, including another session of this Court, have recently relied on Mapp to order bail for habeas petitioners who were civil immigration detainees at risk due to the COVID-19 pandemic. See Avendaño Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459, at *2-4 (S.D.N.Y. Apr. 1, 2020); Jimenez v. Wolf, Civ. A. No. 18-10225-MLW, Memorandum & Order (“Jimenez Order”), ECF No. 507 (D. Mass. Mar. 26, 2020) (Wolf, J.). As expressed during the hearing on April 3, the Court follows these precedents in construing its authority to order bail for habeas petitioners under the reigning “exceptional circumstances,” Glynn v. Donnelly, 470 F.2d 95, 98 (1972), of this nightmarish pandemic. Like Judge Wolf in Jiminez and Judge Oetken in Hernandez, this Court ruled that bail was appropriate for some Detainees on the basis of Mapp and its First Circuit analogues.11
11 The First Circuit in Glynn stated that bail should not be ordered without “a clear case” on both the law and the facts, and that “Merely to find that there is a substantial question is far from enough,” 470 F.2d at 98, and Woodcock indicated that a finding of likelihood of success on the merits may be needed, 470 F.2d at 94. This contrasts with Mapp, which required only (apart from the presence of extraordinary circumstances) that the petitioner raise “substantial claims.” 241 F.3d at 230. Yet, as Judge Wolf observed, the First Circuit cases were dealing with a state prisoner convicted of a crime and for that reason insisted upon a higher standard, see Glynn, 470 F.2d at 98, whereas here “the Mapp test or something similar or perhaps
[27]

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Additionally, the Court follows the light of reason and the expert advice of the CDC in aiming to reduce the population in the detention facilities so that all those who remain (including staff) may be better protected. In this respect, the Supreme Judicial Court of Massachusetts has articulated sound principles: “[T]he situation is urgent and unprecedented, and . . . a reduction in the number of people who are held in custody is necessary,” but “the process of reduction requires individualized determinations, on an expedited basis, and, in order to achieve the fastest possible reduction, should focus first on those who are detained pretrial who have not been charged with committing violent crimes.” Committee for Pub. Counsel Servs., 2020 WL 1659939, at *9.12 The Court will proceed in a similar fashion in diligently entertaining bail applications while the petitions for habeas corpus are pending.
less is appropriate.” Jimenez Order, Ex. 1, at 1-2, ECF No. 507-1. This Court agrees, though it makes little difference because the Detainees released on bail would also satisfy a more exacting standard.
12 With respect to federal prisons, Congress responded to the pandemic by expressly authorizing the Bureau of Prisons to exceed the statutory maximum period of home confinement if the Attorney General makes a finding of “emergency conditions,” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020), and the Attorney General has now found such an emergency. See Memorandum of Attorney General William Barr to Director of Bureau of Prisons (Apr. 3, 2020), https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1c6d51b810000.
[28]

Case 1:20-cv-10617-WGY Document 64 Filed 04/08/20 Page 29 of 29 III. CONCLUSION
The motion for class certification is ALLOWED. The Court now certifies the following class: “All civil immigration detainees who are now held by Respondents-Defendants at the Bristol County House of Corrections and the C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts.” The named petitioners in this action, Maria Alejandra Celimen Savino and Julio Cesar Medeiros Neves, are appointed class representatives.
SO ORDERED. /s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE
[29]

 
 Case 1:20-cv-10617-WGY Document 77 Filed 04/10/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Petitioners, )

)

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent. )

___________________________________)

CIVIL ACTION NO. 20-cv-10617-WGY

YOUNG, D.J.

April 10, 2020

ORDER

The order of submission of briefs on individual

applications for bail is as follows:

Tuesday, April 14, 2020, 9:00 a.m.
1. Tarax-Villeda, Brayan 2. Soe, Aaron 3. Alvarez-Silva, Oscar 4. Gomes, Nuelson 5. Maney Lal, Neved Bai 6. De Carvalho, Janito 7. Vero Campoverde, Sandro 8. Ohenhen, Augustine 9. Dodieu, Woodly 10. Mullings, Terrano

Case 1:20-cv-10617-WGY Document 77 Filed 04/10/20 Page 2 of 3
Wednesday, April 15, 2020, 9:00 a.m.:
1. Gomes, Marcio 2. Miranda-Castillo, Luis 3. Kirkpatrick, Kevin 4. Monteiro, Alessandro 5. Santos-Cabrera, Melchor 6. Velasquez-Hernandez, Oscar 7. Lima, Jucinei 8. Sanchez, Juan 9. Dias, Amiry
Thursday, April 16, 2020, 9:00 a.m.:
1. Hassan, Ahmed 2. Tejada-Alarcon, Eduardo 3. Castaneda-Lomeli, Juan 4. Guallan-Tixi, Diego 5. Perdomo Vizcaino, Rafael 6. Ali, Liban 7. Shaban, Hamzah 8. Tabia, Guillaum 9. Villalta-Cruz, Edwin 10. Rojas Vargas, Karina
Friday, April 17, 2020, 9:00 a.m.:
1. Guerra Nolasco, Marco 2. Darocha, Edlander 3. Armijos, Segundo 4. Mateo Mateo, Melvin 5. Miranda-Tapia, German Oliverio 6. Taylor, Rayon 7. Lux-Quinilla, Carlos 8. Gonzalez Victorio, Abelardo 9. Doe, Isaac 10. Jijon Mora, Felix
[2]

Case 1:20-cv-10617-WGY Document 77 Filed 04/10/20 Page 3 of 3
Monday, April 20, 2020, 9:00 a.m.: 1. Smith, Cordel 2. Valentim, Lucas 3. Bonilla Garcia, Darwin Mauricio 4. Da Graca, Aires 5. Hernandez-Andino, Oscar 6. Leach, Damion 7. Lopez Rodriguez, Geremias 8. Williams, Keith 9. Ixcoy-Hernandez, Santos 10. Laul, Garang
SO ORDERED. _/s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE
[3]

 
 Case 1:20-cv-10617-WGY Document 82 Filed 04/14/20 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

DEFENDANTS’ MOTION TO STAY FURTHER RELEASES Respondents-Defendants hereby Move to Stay Further Releases. Because of the population reduction effected by transfers, voluntary releases and Court-ordered releases, and as a result of steps taken at the Bristol County House of Corrections (“BCHOC”), adequate social distancing is now possible in all ICE detainee units. Should the Court be disinclined to stay the release of detainees on the basis that social distancing is practicable at BCHOC in light of the considerable reduction in the detainee population, then Defendants ask the Court to stay further release of detainees while Defendants determine whether to seek a stay from the First Circuit Court of Appeals.

Case 1:20-cv-10617-WGY Document 82 Filed 04/14/20 Page 2 of 2

As further grounds, Defendants rely on the Memorandum in Support filed herewith and
the exhibits thereto.
Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov
April 14, 2020

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: April 14, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 1 of 18

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO STAY FURTHER RELEASES
Respondents-Defendants hereby provide the Court with their Memorandum in Support of their Motion to Stay Further Releases. Because of the population reduction effected by transfers, voluntary releases and Court-ordered releases, and as a result of steps taken at the Bristol County House of Corrections (“BCHOC”), adequate social distancing is now possible in all ICE detainee units.
In this Memorandum, the Defendants will address: 1. What we are all aiming for in terms of safety; 2. The physical layout at BCHOC; 3. The current population numbers in each unit; 4. Why there is now sufficient space to practice social distancing; and 5. Why the risk of COVID-19 in BCHOC has been adequately addressed.
A. Where the Goalposts Are Before discussing the physical layout of the facility, it is important to review what we are

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 2 of 18
trying to achieve. What the parties, the Court and the Defendants are seeking is to minimize the risk of the detainees getting infected with COVID-19.1 There are a number of ways in which that can be done. None of the possible steps is exclusive. There is no single right way to do this and there is no way to achieve absolute protection from the virus.
Plaintiffs have painted an unrealistic, black and white picture in which the only effective means of protection is the release of all detainees. This is flawed in both logic and pragmatics. First, there is no guarantee that the detainees won’t encounter COVID-19 upon release. The Court, detainees’ counsel and the government have very little means of knowing, much less controlling, the extent to which the detainees and their families practice appropriate precautions against the virus. While the Court has ordered house arrest, the Court neither has authority over, nor insight into, the behavior of those around the detainees. Thus, the risk of the detainees contracting COVID-19 upon release is far from zero.
Conversely, although the Court thinks it astounding that the government makes such an argument, the risk of detainees contracting COVID-19 if they remain at BCHOC is far from 100%. This is underscored by the fact that this litigation is now entering its third week and there are still no cases of COVID-19 in either the inmate or detainee population. In light of the daily exponential increases in the number of confirmed cases in the Commonwealth of Massachusetts, it is clear that the steps taken at BCHOC have been effective.
The Court’s approach has been rooted in its firm belief that social distancing is the sine
1 The Defendants and the Court are also trying to ensure that the community into which the detainees are released is not endangered by their presence and that they will not flee. The danger to the community is of particular concern given that the majority of the released detainees have significant criminal records, typically involving violent crime, domestic abuse and/or drug trafficking. As has been previously stated, they were detained by ICE for good reasons and in good faith.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 3 of 18
qua non of infection prevention. And there is certainly good support for this conclusion, although none of the health experts or governmental organizations have stated that social distancing alone is sufficient. In fact, the earliest guidance from the Centers for Disease Control (“CDC”) and many other health organizations, both domestic and foreign, stressed washing hands with soap and water as the first line of defense. Defendants do not dispute the importance of social distancing, but remind the Court that BCHOC is not like the world at large. This is because BCHOC is able to control who comes into its facility, where they go, and what steps are taken to screen such individuals. Social interaction, the primary focus of the social distancing recommendations, is much more limited at BCHOC than in the outside world, and those who do interact have been isolated from the greater community for the most part.
It is true that individuals have the potential to exercise even greater control over who they come into contact with if they choose to comply with Governor Baker’s recommendation that they stay at home. This is not, at least not yet, a mandatory order. Even families that choose to comply typically have someone going out to buy food, and many households have one or more people that are working outside the home still. In addition, it is likely that the families of released detainees will have fewer resources and diminished access to social services both as a consequence of the pandemic and their socio-economic status before the pandemic. This puts additional economic pressure on them to continue working.
So it is by no means clear that release is a panacea. The Court has determined that a release of some number of BCHOC detainees is necessary in order to reduce the risk of infection in what the Court sees as inevitable, the virus entering the detainee population. We are therefore focused on what is the maximum number of detainees that can be housed in each immigration detention unit at BCHOC and still allow detainees to maintain at least a six foot distance between

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 4 of 18
themselves in accordance with the CDC guidelines. B. The Physical Layout at BCHOC As set forth in the declaration of Superintendent Steven Souza, submitted to the Court on
April 10, 2020 and as updated and attached hereto,2 there are four primary units at BCHOC which house civil immigration detainees and an additional two disciplinary units that may house a small number of immigration detainees. There are also medical units in which a detainee may be segregated; currently, there is one detainee in such a unit. The size of the spaces within each unit are described in the declaration of Superintendent Souza and will not be reviewed here except as relevant.
1. 2 East: Presently, there are 36 male ICE detainees who are housed in “2 East.” 2 East is on the main campus of BCHOC. High risk male ICE detainees are housed there with state pre-trial detainees. This unit is part of our Mods unit and has a capacity for 104 persons. The current population is 54 (36 ICE detainees and 18 state pre-trial inmates). These current 36 ICE detainees are divided into 8 cells, each of which measures 330 square feet (30’ x 11’). There are a total of 13 cells at 2 East. Each cell has a capacity for 8 detainees. Because of the size of the 2 East population, no cell is at full capacity. Seven (7) cells are located on the north side of the room, which is divided by a hall, and the other 6 are on the opposite side of the room (south).
Each cell contains 4 double bunk beds in total, 3 on one wall (each bunk bed unit is separated by approximately 7”-34” between the foot end of one bunk and the head end of the next bunk, which means that detainees’ heads are at least 6-8 feet apart linearly). There is one
2 The primary changes to Superintendent Souza’s declaration are to update the number of detainees in each area. Some of the descriptions of the spaces have been edited for clarity.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 5 of 18
more double bunk bed situated 6’-7’ across the cell on the other wall, with approximately 8’ separating center of each bunk bed (where the occupant’s head is) from the center of the bed on the opposite wall. No portion of an occupant in a bed on one wall is closer than 6’ to any portion of the occupant of a bed on the opposite wall. For all of the bunks, the bottom bunk bed is approximately 3’ below the upper bunk bed, but it should be kept in mind that there is a solid barrier between the upper and lower bunks upon which the upper mattress sits. With the current population in 2 East, there is enough space so each of the three bunkbeds on one wall have only a single occupant. We have arranged it to that the adjacent bunks alternate as to which level, top or bottom, is occupied to increase the distance between detainees’ heads. If the cell has five detainees, both the bottom and top level of the bunk on the opposite side are occupied, but with the head of one detainee over the feet of the other detainee, upon information and belief. No detainee’s head is closer to another detainee’s head than 6.7 feet.
For all of the other areas in 2 East, there is adequate space for social distancing. For example, there are two bathroom/shower rooms in 2 East, each of which is 21’ x 9’. One bathroom has three toilets, five showers, six sinks, and two urinals. The other bathroom has four toilets, five showers, seven sinks, and one urinal. The bathroom/shower areas have sufficient space for the current population to practice appropriate social distancing.
Unit 2 East has one large common area 59’ x 30’. There are six long tables with eight chairs, two medium size tables with four chairs per table, and five round tables with four chairs. This provides seating for 76 detainees, but there are only 54 in 2 East presently (ICE and pre-trial combined). These tables are spaced between 5’-6’ apart and there is rarely, if ever, a time when all detainees are using this area at the same time. There is also an outside recreational area the size of a football field (160’x 280’) which has a walking path, a grass area for activities, and an

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 6 of 18
asphalt area with a basketball court. All of these areas have sufficient space for the current population to practice appropriate social distancing.
With the present configuration of the cells and placement of the bunk beds, there is more than adequate space for 6’ social distancing recommended by the CDC.
2. ICE A: The C. Carlos Carreiro Immigration Detention Center (the “Carreiro Center”) is a separate building at BCHOC. It has two units, Unit A and Unit B. These are separate and distinct units, with separate housing, dining and recreational areas. Because Units A and B are mirror images of each other, everything is the same except for the number of current detainees housed in each. Detainees are assigned to Unit A or Unit B based upon ERO’s determination of their relative risk of violence and/or flight. ICE A houses low and medium-low classification detainees, ICE B houses medium-high and high classification. In Unit A, there are currently 19 ICE detainees, even though there is capacity for 66 detainees. No other detainees and no inmates are housed in either Unit A or Unit B. The sleeping area in both Unit A and B is dormitory style, containing no cells. Each unit has 66 beds (33 double bunk beds) which are placed in 5 rows in an area approximately 1624 square feet (28’ x 58’). See Exhibit 3 attached hereto. Three rows have seven bunk beds per row (four feet separating each row of bunk beds from the adjacent row, and three feet in between each bunk bed within a row), while the other two rows have six bunk beds per row, with the same four feet of separation between beds. Each bunk bed is seven feet long and four feet wide. The top and bottom bunks are three feet apart. Id.; see also Declaration of Superintendent Souza. As of April 12, 2020, the BCHOC has assigned detainees so that only every other row is occupied. Row 1 is occupied by 6 detainees, Row 2 has no detainees, Row 3 has 4 detainees,

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 7 of 18
while Row 4 is empty, and Row 5 is occupied by 9 detainees. This provides significant space between occupied rows (approximately twelve feet) because of the empty row in the middle. In addition to the separation provided by the empty middle rows, detainees are assigned to every other bunk bed, just one detainee per bunk bed (i.e., top or bottom but not both), except that there are two bunk beds with detainees in adjacent beds within the same row. BCHOC has encouraged the detainees in these two sets of adjacent beds (within a row, not across a row) to sleep head to foot so as to ensure that the detainees’ heads are at least seven to eight feet away from any other detainee’s head.3 Id.
Beyond the last row of beds, there is a common area about thirteen feet away. The common area approximates 3,100 square feet. There are eight round tables, each eight feet in diameter, with eight chairs for each. These tables are used for dining, playing games and watching TV. Also, there is a separate laundry room which measures 9’ x 10’, with two washers and two dryers in the room. There is a separate visitors room measuring 13’ x 10’, as well as a very large bathroom/shower room measuring 19’ x 35’. Within the bathroom, there area eight sinks, six showers, three urinals and six toilets. Unit A has a separate classroom that is 18’ x 19’ in size, where detainees can read and study. No formal classes are being held due to the pandemic. Finally, it has an outdoor recreational area that is 30’ x 54’. Each of these areas is sufficiently sized so that the current detainee population can practice appropriate social distancing if they wish to do so. The laundry room cannot handle more than two detainees using it at a time, but this is not an impediment to social distancing because of the function of that room. Id.
3 This is in accordance with CDC guidelines for correctional facilities; see section D below at note 2.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 8 of 18
Lastly, Unit A has a separate dedicated medical office measuring 14’ x 12’. This room is staffed by a nurse who dispenses medication to the detainees as prescribed and attends to detainee medical calls as needed. Detainees visit the office one at a time when summoned. Should a detainee require greater care, he is transported to the main campus to the larger medical unit. Id.
3. ICE B: As stated, ICE B is a mirror image of ICE A, so all of the dimensions set out above apply to ICE B as well. Presently, ICE B has 30 immigration detainees. There are no other types of inmates or detainees housed there. Id. As of now, BCHOC has kept every other row empty in ICE B, but this means that eight bunk beds have the top and bottom bunks filled. See Exhibit 3 hereto (drawings of sleeping arrangements and distances between detainees in bed). BCHOC is going to be encouraged to rearrange the detainees along the lines of the “ideal” configuration in Exhibit 3, which would eliminate any double bunking (i.e., there would only be one person in either the top or the lower levels but not both). As shown in the last page of Exhibit 3, this would allow a minimum distance between sleeping detainees of at least seven feet, and in many cases almost nine and one-half (9.4’) feet. The detainees will be encouraged to alternate top and bottom bunks to further increase the separation between them; this is what allows approximately nine and onehalf feet of separation. See Exhibit 3 at p. 4. 4. EB Unit: Unit “EB” is on the main campus. Currently, there are 14 women in EB, 4 of whom are ICE detainees, while the remaining are state pre-trial detainees. There are a total of 16 cells in EB. They are 80 square feet in size (8’ x 10’). 8 cells are located on the ground level and

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 9 of 18
another 8 are on the mezzanine level. Each of the 16 cells has a single double bunk bed. All detainees and inmates in EB are in a cell by themselves, including the four female ICE detainees. EB has one common bathroom on each levels with two toilets and two sinks each. The bathroom on the ground level, which is 7’ x 9’, has a single shower, while the mezzanine level has two showers. There is a 33’ x 20’ common area, and off of that there is a separate education/program room measuring 10’ x 12’. The common area has one large table and sixteen chairs, as well as two additional small tables with four chairs each. Lastly, there is an outside recreation area located off the common area which is approximately 1,500 square feet in size. The common area, recreation area, main area, and education/program room are all sufficiently sized to allow the detainees (civil and pre-trial) to practice social distancing.
C. The Current Population Numbers in Each Unit The absolute numbers of detainees in each unit are not especially relevant for determining if appropriate social distancing can be practiced. Moreover, except for Units A and B in the Carreiro Center, the other units are different physically. However, it is worth noting that the total number of ICE civil immigration detainees has been reduced from 148 at the outset of this litigation to 92 as of today. That represents a reduction of almost thirty-seven percent (37%). Well more than one in three detainees has been released or transferred. Given that the detainee population was well below capacity at the outset, even before these reductions, the level is now sufficiently low that appropriate six foot social distancing is fully achievable. As stated above, the detainee numbers are:
ICE A – 19; ICE B – 30; 2 East – 36; EB – 4; HSU – 1; EA – 1; and

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 10 of 18
EE – 1.4
D. There Is Sufficient Space to Practice Social Distancing at BCHOC The CDC has identified social distancing as a “cornerstone” of correctional and detention facilities effort to reduce the risk of the coronavirus:
Social Distancing – Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. CDC website at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (accessed April 12, 2020). The CDC recommends that facilities “[e]xplore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.” Id. As stated above, not only is BCHOC not overcrowded, it is significantly under capacity. The CDC also makes a number of suggestions for managing social distancing within a detention facility, but recognizes that the suggestions will have to be adapted for each institution’s particular situation. The suggestions are: Implement social distancing strategies to increase the physical space between
4 The HSU is a medical unit, while EA is a female disciplinary unit and EE is a male disciplinary unit. Because the detainees in these units are in cells/rooms by themselves, no discussion of social distancing is necessary.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 11 of 18
incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: Common areas:
• Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area)
Recreation: • Choose recreation spaces where individuals can spread out • Stagger time in recreation spaces • Restrict recreation space usage to a single housing unit per space (where feasible)
Meals: • Stagger meals • Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table) • Provide meals inside housing units or cells • Group activities: • Limit the size of group activities • Increase space between individuals during group activities • Suspend group programs where participants are likely to be in closer contact than they are in their housing environment • Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 12 of 18
Housing: • If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.) • Arrange bunks so that individuals sleep head to foot to increase the distance between them5 • Rearrange scheduled movements to minimize mixing of individuals from different housing areas
Medical: • If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call. • Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
Id. BCHOC has been following all of these recommendations since before this litigation
began. See Declarations of Superintendent Souza, Dr. Rencricca (attached to Defendants’ Opposition to the TRO motion) and Director of Clinical Services Jezard (same).
E. The Risk of COVID-19 in BCHOC Has Been Adequately Addressed The CDC has updated its guidance regarding COVID-19 for correctional and detention facilities. The CDC does not recommend large-scale release of detainees, however. See CDC website https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/index.html (accessed April 12, 2020).
5 This is one of the suggestions made by the Defendants to which the Court responded that the CDC guidelines concern people, not furniture. See Memorandum of Opinion, April 9, 2020.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 13 of 18
As stated on the CDC webpage for correctional and detention facilities, the institutions should take the following steps (organized into preparatory, prevention and management components):
PREPARE •Coordinate with local public health department and other correctional/detention facilities. •Require staff and visitors to stay home if sick. •Offer seasonal flu shots because limiting cases of flu can help speed the identification of people with COVID-19. •Provide no-cost access to soap and encourage frequent hand washing. •Plan for how to medically isolate and care for sick people. •Plan for potential staff shortages.
PREVENT COVID-19 from entering your facility from the community •Limit non-medical transfers in and out of the facility. •Screen all new entrants, staff, and visitors prior to entering the facility. •Be on the lookout for symptoms and address them immediately. •Clean and disinfect the facility. •Reinforce good hygiene practices. •Use multiple social distancing strategies. •Communicate regularly.
MANAGE COVID-19 if there are cases in your facility •Activate your emergency plan and notify public health officials. •Give any person who is sick a face mask and separate them from others.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 14 of 18
•Send sick staff home. •Quarantine any close contacts. •Clean and disinfect the facility. •Screen for COVID-19 symptoms as part of release planning. •Restrict non-medical transfers in and out of the facility. •Cancel group gatherings. •Suspend visitation and provide virtual alternatives if possible. •Use multiple social distancing strategies. Id. BCHOC, as managed by the Bristol County Sheriff’s Office and in coordination with the medical contractor CPS, is currently, and has been, practicing all of these CED recommendations, with the possible exception of flu vaccines (as to which additional information is being sought). All of these recommendations were included in the CPS Medical Guidance developed by Dr. Rencricca and Director of Clinical Services for the Correctional Psychiatric Services, Inc. (“CPS”) Deb Jezard. This document was attached as an exhibit to Defendants’ Opposition to the Motion for a Temporary Restraining Order, along with declarations of Dr. Rencricca and Director Jezard. Plaintiffs have argued that all detainees are at a greater risk for infection not just because of their physical setting but also due to underlying medical conditions. Plaintiffs claim that the stress of detention alone is a sufficient medical condition to justify release. While there is no doubt that detention is stressful, home confinement in the midst of the pandemic has also proven stressful. More importantly, the CDC recognizes a limited group of underlying conditions as making a COVID-19 infection more risky. These include: •People with chronic lung disease or moderate to severe asthma;

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 15 of 18
•People who have serious heart conditions; •People who are immunocompromised (Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications); •People with severe obesity (body mass index [BMI] of 40 or higher); •People with diabetes; •People with chronic kidney disease undergoing dialysis; and •People with liver disease. See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html (accessed April 12, 2020). While this list covers a number of conditions, it does not include all medical conditions and it does not include mental illness or stress.6 Given the significant reduction in detainee population by almost 38%, and given the generous sizing of the areas within each of the four main units where ICE detainees are held, it is clear that the detainees can practice appropriate social distancing of six feet of separation should they choose to do so. See Declaration of Nelly Floriano, previously submitted to the Court and appended hereto. Nursing Supervisor Floriano stated: “ I am confident that the detainee population is sufficiently low so as to allow adequate social distancing (separation of six feet or more) to be practiced in all of the detainee units.” Id. at ¶ 7. It is not possible to ensure that the
6 Persons with asthma are encouraged to avoid stress, however, as it can trigger an asthma attack. See CDC website at https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/asthma.html (accessed April 12, 2020).

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 16 of 18
detainees will always practice social distancing, despite have the room to do so and having notices up in three languages explaining the necessity for it. But it is no more possible to guarantee that the detainees will practice social distancing upon release. In fact, there is some evidence that socio-economic realities make practicing social distancing outside of an institution very challenging. See, e.g. The Coronavirus Class Divide: Space and Privacy, New York Times online ed., April 13, 2020, available at https://www.nytimes.com/2020/04/12/us/politics/ coronavirus- poverty-privacy.html (last accessed April 13, 2020 at 6:03 p.m.).
The Court has expressed particular concern regarding the sleeping arrangements for detainees. With the current reduced population, there are almost no detainees occupying both the top and bottom bunks of a single bunk bed. For almost all detainees, there is only one person per bunk bed, and they have been encouraged to alternate top and bottom bunks for additional separation. As stated above, this means that there is almost ten and one-half (10.5) feet between the head of one detainee and the head of the next. See Exhibit 3 at p. 4. Since COVID-19 is spread via water droplets containing the virus coming out of the mouth or nose of an infected person primarily, and the nose, mouth and eyes are the most susceptible area of a person exposed to the virus, the head-to-head distance is important. And, as stated above, it is the focus of the CDC in its recommendations for detention and prison facilities. This method of transmission is why social distancing is recommended in the first place, and why masks are now recommended for those who cannot self-isolate. As stated on the CDC website:
-- The virus is thought to spread mainly from person-to-person. -- Between people who are in close contact with one another (within about 6 feet). -- Through respiratory droplets produced when an infected person coughs, sneezes or talks.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 17 of 18
-- These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. CDC website at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html (accessed April 13, 2020 at 6:13 p.m.). While it is certainly true that the virus can also be transmitted by touching a surface that an infected person has touched, this is not addressed by social distancing so much as by proper hand washing, avoiding touching one’s face, and disinfecting common areas—all of which are being done or encouraged at BCHOC.
CONCLUSION Plaintiffs will undoubtedly argue that there is no safe level of detainees at BCHOC. This argument is factually wrong and reflects the truth that the goal of the class action is to release as many detainees as possible, regardless of how much the risk of infection at BCHOC is reduced and regardless of the level of danger a detainee may pose for release or flight.7 While Defendants disagree with the Court’s view of its authority to address conditions of confinement through habeas corpus petitions, and to issue class-wide relief notwithstanding the prohibition in the INA at 8 U.S.C. § 1252, it is clear that something well short of the release of all detainees will satisfy the Court’s goal of reducing the risk of a coronavirus outbreak at the facility. Defendants believe an appropriate reduction has been achieved and ask the Court, therefore, to stay any additional releases of detainees. Should the Court be disinclined to stay the release of detainees on the basis that social
7 It is worth noting in this regard that Plaintiffs have not stood down regarding a single individual detainee, regardless of how violent the detainee’s criminal history or whether the detainee lacks any comorbidities for the virus. There is not one detainee who should not be released in their view no matter that there is no COVID-19 among the detainees or inmates and no matter how many steps BCHOC takes to reduce the risk of infection. Even one detainee would be too much in their view.

Case 1:20-cv-10617-WGY Document 83 Filed 04/14/20 Page 18 of 18

distancing is practicable at BCHOC in light of the considerable reduction in the detainee
population, then Defendants ask the Court to stay further release of detainees while Defendants
determine whether to seek a stay from the First Circuit Court of Appeals.
Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov
April 14, 2020

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: April 14, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

Case 1:20-cv-10617-WGY Document 83-1 Filed 04/14/20 Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO; )

JULIO CESAR MEDEIROS NEVES; and

)

ALL THOSE SIMILARLY SITUATED,

)

)

Petitioners,

)

)

C.A. No. 20-10617-WGY

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent.

)

__________________________________________)

DECLARATION OF STEVEN SOUZA

I, Steven Souza, do hereby depose under oath and with personal knowledge, and from

information provided to me by individuals with personal knowledge, the following:

1. Since May 1, 2011, I have been the Superintendent at the Bristol County House of

Corrections (“BCHOC”). In this capacity, I am responsible for the overall safety of

inmates and detainees housed at that facility. This entails the overall supervision of

all security personnel at all of the facilities operated by the BCHOC, including the

ICE facilities as well as the operations of the contracted health care provider

Correctional Psychiatric Services (“CPS”).

2. I am aware of this Court’s Order dated April 7, 2020, raising the issue as to whether

there is a safe number of detainees in light of the CDC guidance on social distancing.

In response, I provide the following as to the three main areas where ICE detainees

are housed. This declaration is updated to reflect the changed detainee population

and to add some additional descriptive details regarding the units.

Case 1:20-cv-10617-WGY Document 83-1 Filed 04/14/20 Page 2 of 7
EB Unit 3. Unit “EB” is on the main campus. Currently, there are 11 women in EB, 5 of whom
are ICE detainees, while the remaining are state pre-trial detainees. There are a total of 16 cells in EB. They are 80 square feet in size (8’ x 10’). 8 cells are located on the ground level and another 8 are on the mezzanine level. Each of the 16 cells has a single double bunk bed. All four female ICE detainees in the EB Unit are housed in a cell without a roommate. In fact, all detainees and inmates in EB are in a cell by themselves. Also, in EB, there is a common bathroom on both levels, each has 2 toilets and 2 sinks. The bathroom on the ground level, which is 7’ x 9’, has a single shower, while the mezzanine level has 2 showers. There is a Common Area, which is 33’ x 20’, in EB which contains an Officer’s Control Desk, a separate Education//Program Room, measuring 10’ x 12’, with 1 large table and 16 chairs, as well as 2 small tables with 4 chairs each. The Common Area is used for dining, playing cards, watching TV, and writing letters. Lastly, there is an outside recreation area located off the Common Area which is approximately 1500 square feet in size.. The Common Area, Recreation Area, Main Area, and Education/Program Room are all sufficiently sized to allow the detainees (and the inmates) to practice social distancing.
2 East Unit 4. Presently, there are 36 male ICE detainees who are housed in “2 East.” 2 East is on
the main campus of BCHOC. High risk male ICE detainees are housed there with state pre-trial detainees. This unit is part of our Mods unit and has a capacity for 104 persons. The current population is 54 (36 ICE detainees and 18 state pre-trial
2

Case 1:20-cv-10617-WGY Document 83-1 Filed 04/14/20 Page 3 of 7
inmates). These current 36 ICE detainees are divided into 8 cells, each of which measures 330 square feet (30’ x 11’). There are a total of 13 cells at 2 East. Each cell has a capacity for 8 detainees. Because of the size of the 2 East population, no cell is at full capacity. Seven (7) cells are located on the north side of the room, which is divided by a hall, and the other 6 are on the opposite side of the room (south). 5. With regard to ICE detainees in 2 East, by order: Cell 241 has 5 detainees; Cell 242 has 5 detainees; Cell 244 has 4 detainees; Cell 246 has 4 detainees; Cell 248 has 5 detainees; Cell 250 has 4 detainees; Cell 252 has 5 detainees; and, Cell 254 has 4 detainees. The other 5 cells are occupied by state pre-trial inmates. Each cell contains 4 double bunk beds in total, 3 on one wall (each bunk bed unit is separated by approximately 7”-34” between the foot end of one bunk and the head end of the next bunk, which means that detainees’ heads are at least 6-8 feet apart linearly). There is one more double bunk bed situated 6’-7’ across the cell on the other wall, with approximately 8’ separating center of each bunk bed (where the occupant’s head is) from the center of the bed on the opposite wall. No portion of an occupant in a bed on one wall is closer than 6’ to any portion of the occupant of a bed on the opposite wall. For all of the bunks, the bottom bunk bed is approximately 3’ below the upper bunk bed, but it should be kept in mind that there is a solid barrier between the upper and lower bunks upon which the upper mattress sits. With the current population in 2 East, there is enough space so each of the three bunkbeds on one wall have only a single occupant. We have arranged it to that the adjacent bunks alternate as to which level, top or bottom, is occupied to increase the distance between detainees’ heads. If
3

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the cell has five detainees, both the bottom and top level of the bunk on the opposite side are occupied, but with the head of one detainee over the feet of the other detainee. No detainee’s head is closer to another detainee’s head than 6.7 feet. 6. Lastly, there is a hallway in the 2 East facility that measures 30’ x 7’. This is sufficiently large to allow detainees and inmates to practice appropriate social distancing. 7. There are 2 bathroom/shower rooms in 2 East. The bathrooms are 21’ x 9’ in size. One is located on the North side, while the other is on the South side. The North side bathroom/shower room has 3 toilets, 5 showers, 6 sinks, and 2 urinals. The South side bathroom/shower room has 4 toilets, 5 showers, 7 sinks, and 1 urinal. The bathroom/shower areas have sufficient space for the current population to practice appropriate social distancing. 8. Unit 2 East has one large Common Area 59’ x 30’, which contains an Officer’s Control Desk, which has 6 long tables with 8 chairs for each, 2 medium size tables with 4 chairs per table, and 5 round tables with 4 chairs. These tables are spaced between 5’-6’ apart. The Main Area is used for dining and dayroom used for playing cards, watching TV, playing games, and writing letters. There is an outside recreational area the size of a football field (160’x 280’) which has a walking path, a grass area for activities, and asphalt area with a basketball court. All of these areas have sufficient space for the current population to practice appropriate social distancing. 9. With the present configuration of the cells and placement of the bunk beds, there is more than adequate space for 6’ social distancing recommended by the Centers for
4

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Disease Control (“CDC”). C. Carlos Carreiro Immigration Detention Center
10. The last facility housing ICE detainees is the C. Carlos Carreiro Immigration Detention Center (the “Center”). This facility is divided into Unit A and Unit B. These are separate and distinct units, with separate housing, dining and recreational areas. Unit A
11. In Unit A, there are currently 19 ICE detainees, even though there is capacity for 66 detainees. However, I am informed that 1 detainee will be removed from Unit A next week so he can be removed from the United States. Unit A is dormitory style, containing no cells. Unit A has 66 beds (33 double bunk beds) which are placed in 5 rows in an area approximately 1624 square feet (28’ x 58’). 3 rows have 7 bunk beds per row(4’ separating each row of bunk beds from the next row, with 3’ between the end of one bunk bed and the next bunk bed in the same row). The other 2 rows have 6 bunk beds per row, with the same 3’ separation between beds. As of April 6, 2020, the BCHOC has assigned detainees so that only every other row is occupied. To separate the detainees in their sleeping quarters, Row 1 is occupied by 6 detainees, Row 2 has no detainees, Row 3 has 4 detainees, while Row 4 is empty, and Row 5 is occupied by 9 detainees. This provides significant space between the rows (approximately 12’ feet) occupied with detainees because of the empty row in the middle, and even more space between detainees because not all beds in a row are filled.
12. Beyond the last row of beds, there is a Common Area about 13’ away. The Common
5

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Area approximates 3100 square feet comprised of 8 round tables, each 8 feet in diameter, with 8 chairs for each. These tables are used for dining, playing games and watching TV. Also, there is a separate Laundry Room which measures 9’ x 10’, with two washers and 2 dryers in the room. There is a separate Visitors Room measuring 13’ x 10’, as well as a very large Bathroom/Shower room measuring 19’ x 35’. Within the bathroom, there area 8 sinks, 6 showers, 3 urinals and 6 toilets. Unit A has a separate Classroom that is 18’ x 19’ in size, where detainees can read and study. Finally, it has an outdoor recreational area that is 30’ x 54’ where detainees typically play pick up soccer. Each of these area is sufficiently sized that the current detainee population can practice appropriate social distancing if they wish to do so. The laundry room cannot handle more than two detainees using it at a time, but this is not an impediment to social distancing because of the function for that room. In sum, the Common Area that holds the bunk beds and tables measures 108’x 48’ in size. 13. Lastly, Unit A has a separate dedicated medical office measuring 14’ x 12’. This room is staffed by a nurse who dispenses medication to the detainees as prescribed and attends to detainee medical calls as needed. Detainees visit the office one at a time when summoned. Should a detainee require greater care, he is transported to the main campus to the larger medical unit.
Unit B 14. Unit B in the Carreiro Correia Center mirrors Unit A in layout and dimensions; it too
is dormitory style. The sleeping area in B is also 1624 square feet (28’ x 58’). Briefly, it has 5 rows of bunk beds, with 3 rows containing 7 bunk beds, while 2 rows have 6 bunk beds. In this regard, Row 1 is occupied by 13 detainees, Row 2 is empty,
6

Case 1:20-cv-10617-WGY Document 83-1 Filed 04/14/20 Page 7 of 7
Row 3 has 8 detainees, Row 4 is empty and Row 5 has 9 detainees. Like Unit A, there also is a Common Area (3100 square feet approximately) comprised of 8 round tables with 8 chairs for each, all situated in the same special area as Unit A’s Common Area. These tables are used for playing games, programs, watching TV and for dining. The remaining rooms in Unit B are the same as Unit A and are nearly identical in dimensions; thus, this declaration will not belabor this Court with a repetition of those facts. 15. All detainees have access to the bathroom and shower facility; however, they are encouraged to limit the number of occupants in the area for social distancing purposes. All signs have been posted in three languages. There are also signs throughout Units A, Unit B, EB and 2 East instructing ICE detainees to continually practice social distancing as recommended by the CDC.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS FOURTEENTH DAY OF APRIL, 2020.
/s/ Steven Souza STEVEN SOUZA, Superintendent, Bristol County House of Corrections ____________________________________
7

Case 1:20-cv-10617-WGY Document 83-2 Filed 04/14/20 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO; )

JULIO CESAR MEDEIROS NEVES; and

)

ALL THOSE SIMILARLY SITUATED,

)

)

Petitioners,

)

)

C.A. No. 20-10617-WGY

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent.

)

__________________________________________)

DECLARATION OF NELLY FLORIANO

I, Nelly Floriano, do hereby depose under oath and with personal knowledge, and from

information provided to me by individuals with personal knowledge, the following:

1. Since February of this year, I have been the Nursing Supervisor for ICE detainees at

the Bristol County House of Corrections (“BCHOC”). In this capacity, I am

responsible for the medical health of ICE detainees and the provision of nursing

medical services to them. Prior to February, I was a Unit Nurse for the ICE detainees

at BCHOC. I held that position since July of 2019. Prior to working at BCHOC, I

was involved in long term care. I have spent the last thirteen years in health care.

2. I received my LPN degree in 2014 from Diman Regional School of Nursing in Fall

River, Massachusetts.

3. I work from 8 a.m. to 4 p.m., Monday through Friday of every week. I am in the ICE

detainee units almost every day and many times every week. I am very familiar with

the physical layout of the units. I have also reviewed the declaration of

Superintendent Stephen Souza. I am familiar with the recent changes to the

Case 1:20-cv-10617-WGY Document 83-2 Filed 04/14/20 Page 2 of 4
arrangement of the bunk beds in Units A and B of the C. Carlos Carreiro Immigration Detention Center. 4. I am familiar with the CPS Medical Guidelines developed by Dr. Nicholas Rencricca and Deborah Jezard. I am also familiar with guidance from both the Centers for Disease Control (“CDC”) and the Massachusetts Department of Public Health (“DPH”) as they relate to the coronavirus pandemic. I have been trained regarding these guidelines at BCHOC and I have accessed both the CDC and DPH websites regarding COVID-19. 5. I understand that both the CDC and DPH recommend a number of practices to prevent or minimize the spread of COVID-19. These include, but are by no means limited to, practicing social distancing by keeping six feet away from other individuals, washing one’s hands regularly with soap and water, disinfecting common areas used by multiple individuals, isolating persons suspected of illness, the use of masks, appropriate coughing/sneezing protective steps, and other steps. 6. BCHOC, and its contracted health care provider CPS, have taken extensive steps to increase the safety of both staff and detainees/inmates at BCHOC regarding the coronavirus. These steps were outlined in Dr. Rencricca’s affidavit and I will not repeat them here. But I will note that we have all been working diligently, and with great care and attention, to minimize the risk of a COVID-19 outbreak at BCHOC. This is reflected in the fact that there remains no confirmed cases of COVID-19 infection among either detainees or inmates at this time, despite the spiking of cases outside the prison. 7. Based upon my familiarity with the CDC and DPH guidelines and my presence in the
2

Case 1:20-cv-10617-WGY Document 83-2 Filed 04/14/20 Page 3 of 4
detainee units every work day, I am confident that the detainee population is sufficiently low so as to allow adequate social distancing (separation of six feet or more) to be practiced in all of the detainee units. It is ultimately up to the detainees to exercise appropriate care, however. We cannot force the detainees to stay six feet away from each other every moment if they choose not to do so. But there is sufficient space for them to do so. I speak as someone who is in those units every day, and not as an outside expert who is offering a theoretical opinion about jails in general. 8. I have been informed that some detainees have represented that there is insufficient hand soap or toilet paper to practice proper hygiene. This is simply not true. No detainee has complained to me or my staff about that, and we would make sure that BCHOC staff corrected any such deficiency immediately if it existed and we were made aware. I obviously cannot say that no bathroom stall has ever run out of toilet paper, but I am confident that this has not been an ongoing or pervasive issue. 9. In conclusion, I firmly believe that adequate social distancing and proper hygiene can be maintained at BCHOC under current conditions. I also believe that many of the detainees receive a level of medical care that they have not, and likely would not, receive outside BCHOC. We have had many inmates and detainees learn of a medical issue for the first time while under our care as a result of our thoroughness.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS NINTH DAY OF APRIL, 2020.
/s/ Nelly Floriano 3

Case 1:20-cv-10617-WGY Document 83-2 Filed 04/14/20 Page 4 of 4 Nelly Floriano Nursing Supervisor, ICE Units
4

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 Case 1:20-cv-10617-WGY Document 119 Filed 04/23/20 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO; )

JULIO CESAR MEDEIROS NEVES; and

)

ALL THOSE SIMILARLY SITUATED,

)

)

Petitioners,

)

)

C.A. No. 20-10617-WGY

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent.

)

__________________________________________)

SUPPLEMENTAL DECLARATION OF STEVEN SOUZA

I, Steven Souza, do hereby depose under oath and with personal knowledge, and

information provided to me by individuals with personal knowledge, the following:

1. This declaration is a supplement to my previous declarations filed in this lawsuit.

2. I have been informed by government counsel that at the last hearing conducted by this

Court, the issue of food services at the Bristol County House of Corrections

(“BCHOC”), and safety in light of COVID-19, was raised by Plaintiffs.

3. All food products are delivered to the BCHOC Receiving Department and all boxes

are sanitized and stored in the receiving area or placed into the coolers/freezers for

later use. The required food items are then transferred from the Receiving area (by a

full time staff person via pallets on a department fork lift or via a department van) to

the main building or modular building. There are a few vendors that deliver their

products directly to the main building via the loading dock. Those boxes are sanitized

before they are placed into the storage locations. There is a food storage area located

adjacent to the main kitchen for dry goods. The main kitchen also has coolers/freezers

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for frozen products and perishables. There is also an additional cooler/freezer and dry food storage area located in the modular building’s kitchen (kitchen is not an active working kitchen) we only have one main kitchen for food and meal preparation. 4. At BCHOC, meals are prepared by staff in two shifts. The first shift which prepares breakfast for all inmates and detainees at the facility, is comprised of approximately 20 individuals. Two are full time BCHOC staff and 18 are inmates. Also, there is a correctional officer on each shift to oversee the safety in the kitchen. The two BCHOC staff not only assist in food preparation, but also supervise the various inmates who are on the morning kitchen staff. The second shift prepares the lunch and supper meals and there are two full time BCHOC staff and 13-15 inmates (depending on meals being served) and once correctional officer to oversee the safety in the kitchen. 5. During every phase of preparing the meals for the facilities occupants, all kitchen staff wear hair nets, masks and gloves. Kitchen staff have always used gloves and hair nets, and beard guards in meal preparation, but with the pandemic, BCHOC ordered kitchen staff to wear masks at all times. 6. In light of the medical conditions of many of the inmates and detainees, numerous meals are prepared based on medical staff instructions, with each inmate’s/detainee’s name on the meal. The meals are placed in separate Styrofoam containers if it is a cold meal, or in separate plastic hot trays covered with plastic lids and then placed in a meal cart by staff wearing masks and gloves. The meal carts are then transported to each immigration detainee Unit where they are disseminated to the detainees by a detainee volunteer worker who also wears a mask and gloves, supervised by a
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Correctional Officer. The entire covered tray is handed to each detainee who will take it back to their table or bunk and removes the hard plastic lid (this is a change for sanitary purposes). Prior to Covid-19 the detainee worker would remove the plastic lid for security and accountability purposes. Once the detainee finishes eating they return the hard plastic tray along with the plastic lid to the meal cart to be returned to the kitchen for cleaning and sanitizing. 7. At no time through the entire process of the meal preparation and delivery of the meals is staff without masks and gloves for safety reasons. 8. In fact, all inmates and detainees are required to wear masks throughout the day, except when they are sleeping in their beds. This requirement is monitored by BCHOC staff in all units, who are also required to wear masks during their entire shifts. 9. It is my opinion, BCHOC has implemented very strict and practical policy and safety measures that ensure the health of all its inmates and detainees during this pandemic. These measures have been articulated in prior declarations submitted to this Court, as well as herein. To date, BCHOC has not experienced a single COVID-19 case in its detained population. In comparison, the State of Massachusetts has experienced over 41,199 COVID-19 cases, with 1852 confirmed cases in Bristol County as of April 21, 2020. See An Updating Overview of Coronavirus in Massachusetts, Dylan Dwyer, Boston.com, April 21, 2020. 10. Currently, there are 83 immigration detainees housed at BCHOC. Of this total, 12 are in Unit A, 27 are in Unit B, 36 are in 2 East, while 5 are in EB. We have 4 males in Restrictive Housing for disciplinary offenses and 1 female in female Restrictive
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Housing for disciplinary. As this Court is well aware, the BCHOC has a capacity to house 212 immigration detainees: 132 at the ICE building, 64 in 2 East and 16 in EB. We are now almost 60% below capacity. In this regard, sleeping and living arrangements in all Units where detainees reside permit for social distancing recommended by the Center for Disease Control (“CDC”) to occur on a full time basis. In addition, as mentioned above, every detainee, inmate, and BCHOC staff member is required to wear a face mask at all times while in the facility. With these and the other safeguards reported to the Court, maximum steps have been taken to minimize the risk of a COVID-19 infection and any spread. It has now been almost a month since the litigation began with Plaintiffs (and their experts) claiming that widespread infection at BCHOC was inevitable. That has not happened. If in the unlikely event an infection does occur, the facility is equipped with the tools to address the issue promptly and appropriately. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS TWENTY THIRD DAY OF APRIL, 2020.
/s/ Steven Souza STEVEN SOUZA, Superintendent, Bristol County House of Corrections
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 Case 1:20-cv-10617-WGY Document 150 Filed 05/06/20 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

PLAINTIFFS’ SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-10617-WGY Document 150 Filed 05/06/20 Page 2 of 26
TABLE OF CONTENTS Page(s)
INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................3
I. COVID-19, CDC Guidance, And The Dangers Of Congregate Living ..................3 II. Class Members Are Not Currently Able To Socially Distance At BCHOC ...........4 III. There Is A Lack Of Adequate Sanitation At BCHOC.............................................8 IV. There is Insufficient Personal Protective Equipment at BCHOC..........................10 V. The Actual Number of COVID-19 Cases At BCHOC Is Unknown, Because
BCHOC Conducts Hardly Any Testing.................................................................11 VI. Defendants Are Not Taking Reasonable Steps To Mitigate Substantial Health
Risks To Class Members .......................................................................................12 ARGUMENT .................................................................................................................................13
VII. Plaintiffs Have A High Likelihood Of Success On The Merits.............................13 a. The Conditions At BCHOC Are Unreasonably Unsafe, Rendering Them Unconstitutional .........................................................................................13 b. Defendants Have Taken Insufficient Steps In Light of Known Risk, Rising To the Level of Deliberate Indifference, and Such Conduct Will Continue Absent An Injunction ........................................................14
VIII. The Potential For Irreparable Harm Is Great .........................................................17 IX. The Balance Of Hardships And Public Interest Favor Plaintiffs...........................18 X. A Preliminary Injunction Is Warranted..................................................................19 CONCLUSION ..............................................................................................................................20
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TABLE OF AUTHORITIES

CASES

Page(s)

Brito v. Barr, 395 F. Supp.3d 135 (2019) ......................................................................................19

DeShaney v. Winnebago Cty Dept. of Soc. Servs., 489 U.S. 189 (1989).......................................13

Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13 (1st Cir. 2006)..............................13

Farmer v. Brennan, 511 U.S. 825 (1994) ......................................................................................15

Fox v. Lappin, 441 F.Supp.2d 203 (D. Mass. 2005)......................................................................20

Fraihat v. U.S. Immigration and Customs Enforcement, Case No. 5:19-cv-01546JGB-SHK (C.D. Cal. Apr. 20, 2020), ECF No. 132 ..........................................................12

Glossip v. Gross, 135 S. Ct. 2726 (2015) (Breyer, J. dissenting) ..................................................20

Gomes v. DHS, Civil No. 20-cv-00453-LM (D.N.H.) ...................................................................19

Kane v. Winn, 319 F.Supp.2d 162 (D. Mass. 2004) ......................................................................20

Leite v. Bergeron, 911 F.3d 47 (1st Cir. 2018) ..............................................................................15

Reid v. Donelan, 390 F.Supp.3d 201 (D.Mass., 2019) ..................................................................19

Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) ............................ 17-18

Youngberg v. Romeo, 457 U.S. 307 (1982) ............................................................................. 14-15

Zadvydas v. Davis, 533 U.S. 678 (2001) .................................................................................13, 18

STATUTES, RULES, AND REGULATIONS

8 U.S.C. §§ 1182(d)(5), 1225(b), 1226(c), 1226(a) ................................................................. 18-19

Fifth Amendment ................................................................................................................... passim

Eighth Amendment ..................................................................................................................13, 17

OTHER AUTHORITIES

Brie Williams, MD, MS & David Cloud JD, MPH, The Ethical Use of Medical
Isolation – Not Solitary Confinement – to Reduce COVID-19 Transmission in Correctional Settings ................................................................................5

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Chicago’s Jail Is Top U.S. Hot Spot As Virus Spreads Behind Bars, NEW YORK TIMES (April 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html .........................................................................................................................4
Bristol County Sheriff’s Office Twitter Account (last accessed May 5, 2020) https://twitter.com/BristolSheriff/status/1257767668561489921 ........................................8
LOS ANGELES TIMES (May 5, 2020), https://www.latimes.com/california/story/2020-05-05/coronavirus-covid19-deaths-terminal-island-prison-california-fauci ...............................................................4
Mass virus testing in state prisons reveals hidden asymptomatic infections; feds join effort, USA TODAY (April 25, 2020), https://www.usatoday.com/story/news/politics/2020/04/25/coronavirustesting-prisons-reveals-hidden-asymptomatic-infections/3003307001/ ............................11
Pandemic, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contacttracing.html ........................................................................................................................11
Situation Briefing (Apr. 19, 2020), https://www.cdc.gov/coronavirus/2019ncov/cases-updates/summary.html ......................................................................................4
Chloe Taylor, Coronavirus Outbreak Likely to Go On for Two Years, Scientists Predict, CNBC (May 1, 2020), https://www.cnbc.com/2020/05/01/coronavirus-pandemic-likely-to-lastfor-two-years-scientists-predict.html ...................................................................................4
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INTRODUCTION In the six weeks since this case was filed, much has changed. Tens of thousands of residents of the Commonwealth have been diagnosed with COVID-19, and thousands have died. The grim upward march has now begun at the Bristol County House of Correction (BCHOC) as well: one, then two, now eleven staff infected in BCHOC facilities and just this week the first confirmed case among the detainee population. So too, scientific knowledge about the virus has evolved on an almost daily basis, with more symptoms being added to the Centers for Disease Control and Prevention (CDC) list, and growing evidence of COVID-19’s long-term effects. Another notable change since this case was filed: upwards of 40 people who were previously being held by Defendants in the densely-packed confines of BCHOC are now safely quarantining at home due to this Court’s orders – still within the control of ICE, many with electronic monitoring, but no longer in BCHOC’s desperately unsafe congregate environment. But while much has changed, much has also stayed the same. The virus remains highly contagious and potentially lethal, and the CDC therefore continues to advise that social distancing must be the “cornerstone” of any effective public health response. Yet that critical preventative measure continues to be impossible at BCHOC, with contact among detainees and staff throughout the day “unavoidable,” in the words of Superintendent Souza. Class members are still sleeping in congregate cells or rooms, often right next to or on top of one another. Communal bathrooms are still shared by up to 54 individuals, with no regular cleaning, much less sanitation between each use. And class members still eat meals prepared in a congregate kitchen facility by approximately 40 individuals from another unit. Defendants’ response to the challenges posed by the pandemic also remains largely unchanged. Most notably, Defendants’ pre-litigation failure to look carefully at how to reduce
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the detainee population to decrease the risk of infection has not been rectified – and indeed has only grown more glaring as the virus now threatens to take hold in the facility. Even after this Court made clear on April 8, 2020 that “the question is whether the government is taking reasonable steps to identify those Detainees who may be released in order to protect everyone from the impending threat of mass contagion,” Mem. & Order, ECF 64 at 23, Defendants’ stance has remained unchanged: no one needs to be released, and no one should have been released. Further, and most importantly to the point of this motion: Defendants are fully prepared to go back to the pre-lawsuit density levels if only this Court will allow it.
The Court should not do so. The evidence that Plaintiffs have amassed in the record – from numerous class members, doctors, and public health experts, and from the admissions of Defendants themselves – amply justifies the entry of a Preliminary Injunction to further reduce the density level at BCHOC and ensure the health and well-being of those remaining inside. Plaintiffs have demonstrated a high likelihood of success on the merits: that their continued detention would violate the Fifth Amendment, which entitles immigration detainees to “reasonable safety.” The possibility of irreparable harm could hardly be more clear than it is here, and the balance of hardships tips decidedly in Plaintiffs’ favor. Finally, the public interest would be well-served by an injunction. This virus knows no walls, meaning that flattening the curve for class members benefits the community at large.
Plaintiffs therefore respectfully request that a Preliminary Injunction be entered, to reduce BCHOC’s population density to a level that provides class members with the reasonable safety that the Constitution demands. And for those individuals not released, this Court should require Defendants to comply with the same sort of minimal public health standards ordered by other courts during this once-in-a-century public health crisis.
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FACTUAL BACKGROUND I. COVID-19, CDC Guidance, And The Dangers Of Congregate Living
The Court is familiar with COVID-19, as well as with public health guidance on how to combat and control the disease. Accordingly, Plaintiffs will not repeat that background in depth here, other than to highlight the following:1
The virus is highly contagious, spread by person-to-person contact. COVID-19 is easily spread through expelled droplets when people are in close proximity to one another. Individuals who contract the virus may spread it even if they have not yet shown symptoms. Some individuals never exhibit symptoms at all but may nonetheless still spread the disease. See Gonsalves Decl. at ¶ 10. The CDC has therefore emphasized that social distancing is the “cornerstone” of an effective public health response. Individuals should maintain a distance of at least 6 feet from each other to avoid spreading the virus. More recent research shows that the virus may be spread across even longer distances, making 6 feet the minimum effective distance.
The virus also can be spread through shared surfaces. The virus also lives for hours on surfaces and may be spread by people touching shared surfaces. See id. at ¶ 15. Accordingly, the CDC and other experts have warned that it is critical to avoid contact with shared surfaces.
In over 15% of cases, the virus causes severe illness or death. The virus causes severe illness or death in over 15% of those infected. See id., ¶ 3. For those who recover, the long-term effects of the virus are as yet unclear but thought to be significant. Singer Decl. ¶ 12.
1 Evidence pertaining to these background issues can be found throughout the record, including at Mem. in Support of Mot. for TRO, ECF 12, at 8-13; Decl. of Allen S. Keller, M.D., ECF 12-1; Decl. of Gregg Gonsalves, ECF 12-2; Reply Decl. of Gregg Gonsalves, ECF 33-5; Briefing on the Individual Appls. for Bail, Tuesday, April 7, 2020, ECF 52, at 3-5; Suppl. Decl. of Dr. Matthew Gartland, ECF 68-1; Decl. of Frederick L. Altice, ECF 68-2; Decl. of Mary T. Bassett, MD, MPH, ECF 68-3; Suppl. Decl. of Allen S. Keller, M.D., ECF 91-4; Decl. of Dr. Elizabeth Singer (MD, MPH, FACEP), ECF 91-5; Second Suppl. Decl. of Dr. Matthew Gartland, ECF 91-7. Plaintiffs rely on all of the evidence in the record to date to support their Preliminary Injunction Motion.
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Certain categories of people are at particularly high-risk, but the virus can harm or kill anyone. The CDC has advised that certain people with pre-existing medical conditions are at higher risk for severe illness if they contract COVID-19. However, scientists are racing to learn more about the disease, and as more becomes known each day about how the disease is spread, who may be vulnerable, and the long-term effects of infection. See Keller Decl. ¶ 27; CDC, Coronavirus Disease (COVID-19): Situation Briefing (Apr. 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html. In any event, it is now well known that the virus can strike anyone down. See Gonsalves Decl. ¶ 5.
Congregate living settings are especially vulnerable. Given the importance of social distancing, congregate living settings – cruise ships, nursing homes, detention facilities – have been among the hardest hit. In the Cook County Jail in Chicago, for instance, two inmates tested positive for COVID-19 in late March; within 2 weeks, more than 350 people were infected; and by now six inmates and a guard have died. At the Terminal Island prison in San Pedro, California, six inmates have died and over 60% of the population has tested positive.2
There is a long road ahead. The pandemic continues to evolve, and scientists predict it will be with us for months, if not years, and expect additional waves over time.3 II. Class Members Are Not Currently Able To Socially Distance At BCHOC
It is not currently possible for class members to engage in social distancing at BCHOC. In all of the daily necessities of life – sleeping, using the bathroom, accessing medical care, eating meals, and other activities – BCHOC is much too densely populated to allow individuals
2 See See Chicago’s Jail Is Top U.S. Hot Spot As Virus Spreads Behind Bars, NEW YORK TIMES (April 8, 2020) available at https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html; 6th Terminal Island Prisoner Dies of COVID-19, LOS ANGELES TIMES (May 5, 2020) available at https://www.latimes.com/california/story/2020-05-05/coronavirus-covid-19-deaths-terminal-island-prisoncalifornia-fauci. 3 See, e.g., Chloe Taylor, Coronavirus Outbreak Likely to Go On for Two Years, Scientists Predict, CNBC (May 1, 2020), https://www.cnbc.com/2020/05/01/coronavirus-pandemic-likely-to-last-for-two-years-scientists-predict.html.
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to stay 6 feet away from each other. The tight spaces and congregate living that characterize BCHOC are in fact the antithesis of the CDC’s social distancing recommendations.
As set forth in previous briefings, class members are held in four different units. See, e.g., ECF 83-1 (Apr. 14, 2020 Souza Declaration). Units A and B house only male ICE detainees; each of these units consists of an open room with rows of bunk beds. Id. at 5-7. As of late last week, Unit A held approximately 11 individuals, and Unit B held approximately 26 individuals.4 See Souza Dep.at 168, 182-83. The EB Unit is the women’s unit and includes both ICE detainees (currently 5) and women being held in criminal custody pre-trial (currently believed to be 5-6). See Souza Dep. at 188. 2 East is a men’s unit that houses both ICE detainees (36) and criminal pre-trial detainees (18). See Souza Decl. ¶ 4; Souza Dep. at 194.
Congregate sleeping is the norm at BCHOC, with only the EB unit detainees in single cells. In 2 East, for example, 4-5 detainees sleep in a single cell that measures only 11 feet wide and 30 feet long. See Souza Dep. at 195; Souza Decl. ¶ 4. With bunkbeds against both walls of each cell and lined up end-to-end, class members are packed in, and in some cases literally right on top of each other. See Souza Dep. at 197; Souza Decl. ¶ 4 (individuals continue to share bunkbeds in 2 East). An aisle of only 6-7 feet runs between the bunk beds, meaning that it is impossible for a detainee to get up and walk out of his cell without coming within feet if not inches of his cellmates. See id. To illustrate the spatial limitations of BCHOC, Plaintiffs submitted architectural diagrams completed to scale, based on the information provided by
4 As previously raised with the Court, all detainees in Unit B were moved out of the unit on Friday, May 1, 2020. They are currently housed in individual segregation units but are expected to move back to Unit B at some point in the future. As raised by the Court’s questions as posed in ECF 144, there are significant differences between quarantine or medical isolation and administrative segregation or “solitary confinement,” the latter of which is neither an appropriate nor effective public health and medical response to the current pandemic. See Brie Williams, MD, MS & David Cloud JD, MPH, The Ethical Use of Medical Isolation – Not Solitary Confinement – to Reduce COVID-19 Transmission in Correctional Settings, Amend at University of California, San Francisco (April 9, 2020). Plaintiffs will be prepared to discuss these issues more fully with the Court at the May 7, 2020 hearing.
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Case 1:20-cv-10617-WGY Document 150 Filed 05/06/20 Page 10 of 26 Superintendent Souza.5 One diagram shows sleeping detainees in red, and a standing detainee in blue. The blue shaded area or circle marks a 6-foot radius around the standing person:
Similarly, in Units A and B, there continue to be rows of dormitory-style bunk beds. See Souza Dep. at 184-85; Souza Decl. ¶¶ 11, 14. Following court-ordered releases, Defendants have attempted to move class members around within those beds to create more space, but the density does not allow adequate spacing. Numerous class members are still sleeping in rows of beds right next to each other. See Fall Decl. ¶ 5. When people inevitably pass through the aisles, individuals are in even closer proximity to each other. See ECF 91-6, Exhs B, C.
5 See ECF 91-6, Declaration of Jen Shin and Accompanying Exhibits. Ms. Shin based the renderings on the dimensions specified in Superintendent Souza’s Declaration and corroborated the actual physical layout where possible. See id.
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Bathrooms are similarly cramped. In the women’s unit (EB), 9 women share tiny bathrooms that measure only 7 feet by 9 feet. Souza Decl. ¶ 3. Into these tight spaces are crammed two toilets, two sinks, and a shower. Id. Similarly, tight quarters exist in the men’s units, with 2 East bathrooms shared by up to 54 individuals. Souza Decl. ¶ 4. These bathrooms – which are only 9 feet wide and 21 feet in length – contain four toilets, five showers, seven sinks, and a urinal. Souza Decl. ¶ 7. The bathrooms in Units A and B similarly each have six toilets, three urinals, eight sinks, and six showers – frequently in use at the same time. Souza Decl. ¶ 12; Souza Dep. at 209. In each bathroom, the sinks, toilets, and showers are lined up closely to one another. See also ECF 91-6, Exhs B, C, D:
The communal areas used during other times such as at mealtime and during recreation likewise allow no room for social distancing. De Jesus Concepcion Decl. ¶¶ 6, 7; Wafula Decl. ¶
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14. As Superintendent Souza candidly conceded, coming within six feet of others during the day at BCHOC is “unavoidable.” See Souza Dep. at 68.
Moreover, people are constantly moving in and out of the facilities. While Defendants stopped detainees from having even non-contact visits because those “can’t currently happen safely,” Souza Dep. at 306, correctional officers, nurses, and other staff who work at BCHOC come and go with each shift, creating constant traffic in and out of the facility. A common medical unit serves ICE detainees as well as state inmates and pre-trial detainees. Floriano Dep. Tr. (Rough) at 16; 69. Many BCHOC staff, including the nurses and mental health workers, regularly come into close contact with both ICE detainees and inmates, id. at 19-20, 74,, and some work second jobs at nursing homes or other correctional facilities, increasing the risk of cross-contamination even more. Id. at 71. Since this litigation began, eleven of these staff members, including a nurse and a mental health worker, have tested positive for the virus.6
Moreover, class members in 2 East and in the EB unit share their close quarters with an ever-changing population of non-ICE detainees. Souza Decl. ¶ 4. Individuals from state custody are also routinely transferred into the other units of immigration. See, e.g., ECF 109.
With quarters this close, with staff moving in and out of the facility every day, and with a regular stream of new detainees moving into the space, it is simply not possible for class members to socially distance at BCHOC. III. There Is A Lack Of Adequate Sanitation At BCHOC
The dangers of congregate living at BCHOC do not just rest in the fact that close quarters make it impossible for class members to socially distance. The COVID-19 virus can live for hours on surfaces, making the many shared surfaces at BCHOC another significant risk factor.
6 See Hodgson Dep. Tr. 127:10-16; see also Bristol County Sheriff’s Office Twitter Account (last accessed May 5, 2020) https://twitter.com/BristolSheriff/status/1257767668561489921.
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As noted above, the bathrooms in particular are shared by scores of individuals and are in use throughout the day and night. See, e.g., Declaration of Altagracia Baez Guerrero ¶ 5; Declaration of Amiry Carlos Dias ¶ 5. No type of seat covering or disinfecting wipe is provided for detainees to even attempt to clean any of these bathroom surfaces before use. See Fall Decl. ¶ 3. Nor is any regular cleaning done of these facilities. Even following the outbreak of the COVID-19 pandemic and the increasingly dire warnings from public health professionals, BCHOC has no professional cleaning crews of any kind. Souza Dep. at 211. While Defendants claim to have protocols and procedures in place for sanitation, including supposed regular cleanings performed by “detainees or staff,” in fact no one is monitoring that such cleaning is happening. Superintendent Souza – the individual who is supposedly most knowledgeable about BCHOC’s sanitation and hygiene procedures – testified that he has not set foot in any of the units in question for the last 3-4 weeks. Souza Dep. at 168 (Unit A), 182 (Unit B), 188 (EB Unit), 193 (2 East).
Class members themselves, who live in the units and experience their conditions every day, attest to the poor conditions on the ground. Detainees or inmates from state custody previously did some of the cleaning. Fall Decl. ¶ 3. Now, even this has stopped, and correctional officers tell class members it is “not their job” to clean. Id.; Declaration of Conroy Lewis ¶ 2. The result is as one might expect: filthy bathrooms with standing water and trash strewn on the floor. Id. ¶ 4.; Castillo Martinez Decl. ¶ 4; Dias Decl. ¶ 6. Toilets are open-lidded, frequently clogged, and dirty. Fall Decl. ¶ 4; Lewis Decl. ¶ 4 .
Other shared surfaces, such as tables, chairs, and phones, are similarly used by dozens or more individuals throughout the day, without any kind of regular cleaning, much less disinfecting between each use. Hand sanitizer and soap frequently runs out; and no provision is
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made to give detainees personal cleaning materials for their bunks or for use on shared spaces. See, e.g., Declaration of Jhony Bonilla Ochoa ¶ 11; Castillo Martinez Decl. ¶ 9; Declaration of Aires Da Graca ¶ 8; Guerrero Decl. ¶ 5. Even at mealtime, when hand-to-mouth contact raises the risk of infection substantially, no wipes or other cleaning materials are given to detainees to wipe down surfaces before eating. Souza Dep. at 219 (“Those wipes are for staff to clean the control areas and computers and so forth.”).
Meal preparation is similarly problematic, conducted by scores of different people in a congregate kitchen. Souza Dep. at 76 (“So we may have a total of, say, 40 inmates that work in the kitchen during three specific shifts”). Notably, these are not even workers from the same population of civil immigration detainees; they are individuals from a different part of the facility that houses sentenced inmates, creating yet more cross-contamination. Id. at 214 (“All of the kitchen workers are sentenced inmates.”). IV. There is Insufficient Personal Protective Equipment at BCHOC
Provision of Personal Protective Equipment (PPE) at BCHOC is inadequate, and use is sporadic. Since this litigation commenced, staff have been provided with masks. But use is inconsistent. Class members report that staff often have their masks on, but up around their foreheads or down at their chins. Fall Decl., ¶ 7; Declaration of Jhony Bonilla Ochoa ¶ 7. While staff are issued 5 masks, detainees have only been given one each – despite a stockpile of 2,000 masks in the facility. Souza Dep. at 85, 89, 96. Detainees are told to clean their own masks but given no replacement masks while they are doing so. Fall Decl. ¶ 6; Castillo Martinez Decl. ¶ 7; Guerrero Decl. ¶ 6. Staff sometimes wear gloves, sometimes not. Floriano Dep. (Rough) at 53. Class members are given no gloves at all. Souza Dep. at 120.
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V. The Actual Number of COVID-19 Cases At BCHOC Is Unknown, Because BCHOC Conducts Hardly Any Testing. Testing and contact-tracing at BCHOC is insufficient and ad hoc. Although public health
professionals advise that many individuals have and can spread the virus, despite remaining asymptomatic, BCHOC conducts no testing of asymptomatic individuals. Souza Dep. at 163-64 (new arrivals not tested); id. at 318 (no asymptomatic testing); Hodgson Dep. (Rough) at 132 (same). This stands in stark contrast to the growing number of detention facilities, including the federal Bureau of Prisons, that are ramping up testing to cover their entire populations, including those who are asymptomatic.7 And while Defendant claims to test any detainee who reports two or more from a list of common COVID-19 symptoms, class member medical records indicate otherwise, with many such individuals going untested. Floriano Dep. (Rough) at 98-99; see, e.g., Class Member Progress Notes at 2 (noting that individual reported fever and cough on April 5, 2020, but not noting a test); May 4, 2020 Inmate Testing Sheet (showing just 25 inmates tested for COVID-19). Contact tracing for those who have tested positive is also irregular at best, further inhibiting any possibility of containing the virus. See, e.g., Souza Dep. at 279-80 (limited contact tracing for Sheriff’s Office employees, no written policies describing contract tracing); 288:4-7 (unsure whether contact tracing has been done for medical staff).8
Even despite this lack of consistent or widespread testing, the virus has clearly breached the facility walls. A steadily growing number of facility staff have tested positive, and just this week the inevitable occurred: a class member tested positive for COVID-19 as well. That
7 See Mass virus testing in state prisons reveals hidden asymptomatic infections; feds join effort, USA TODAY (April 25, 2020) available at https://www.usatoday.com/story/news/politics/2020/04/25/coronavirus-testing-prisonsreveals-hidden-asymptomatic-infections/3003307001/. 8 The CDC describes contact tracing as a “core disease control measure” and “a key strategy for preventing further spread of COVID-19.” See Contact Tracing: Part of a Multipronged Approach to Fight the COVID-19 Pandemic, CENTERS FOR DISEASE CONTROL AND PREVENTION, available at https://www.cdc.gov/coronavirus/2019ncov/php/principles-contact-tracing.html.
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detainee has been at BCHOC since November, and therefore could only have become infected at BCHOC. Hodgson Dep. (Rough) at 127-28, 131. He was housed in Unit B, most recently in close proximity with approximately 25 other detainees. Souza Dep. at 182-83. It is inconceivable that he is the only detainee who has contracted the virus. VI. Defendants Are Not Taking Reasonable Steps To Mitigate Substantial Health Risks
To Class Members Defendants have failed to take reasonable measures to mitigate the threat posed by COVID-19 to the health and well-being of class members. Defendants have not analyzed the detainee population to determine if voluntary releases would be possible for any individuals. Neither Sheriff Hodgson nor Superintendent Souza nor Nelly Floriano, the Nursing Supervisor, has ever had any discussions with ICE about voluntary releases of medically-vulnerable individuals, even though ICE publicly claims to have “evaluated its detained population based upon the CDC’s guidance for people who might be at higher risk for severe illness as a result of COVID-19 to determine whether continued detention was appropriate.”9 No public health experts have been consulted to analyze whether additional steps should be taken to minimize risk, and the unsafe and unsanitary conditions described above have all been allowed to persist. Floriano Dep. (Rough) at 20-24, 26, 104-05; Souza Dep. at 231-32, 234, 236; Hodgson Dep. (Rough) at 35-36. In fact, despite the overwhelming public health guidance to the contrary, Defendants have repeatedly taken the position that BCHOC is safe no matter the population density. Hodgson Dep. (Rough) at 82; Floriano Dep. (Rough) at 30-32; Souza Dep. at 242-43.
9 Not only is such screening purportedly required by ICE’s own guidance, it has also been mandated as part of a nationwide class action. See Fraihat v. U.S. Immigration and Customs Enforcement, Case No. 5:19-cv-01546-JGBSHK, at 38 (C.D. Cal. Apr. 20, 2020), ECF No. 132, at 28 (requiring ICE to identify and track high-risk individuals in custody and make timely custody redeterminations). Yet there is no evidence that any such conversations have even occurred at BCHOC, and certainly no releases have transpired on these grounds.
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ARGUMENT On a motion for preliminary injunction, the Court analyzes four factors: (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the relative hardships; and (4) the effect on the public interest. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 17-18 (1st Cir. 2006). Each overwhelmingly favors Plaintiffs. VII. Plaintiffs Have A High Likelihood Of Success On The Merits. a. The Conditions At BCHOC Are Unreasonably Unsafe, Rendering Them
Unconstitutional. Plaintiffs have a high likelihood of succeeding on their claim that their continued detention violates the Fifth Amendment. In light of the COVID-19 pandemic and the close quarters described above, BCHOC is unreasonably unsafe. It is thus unconstitutional for Defendant to continue to hold class members there. Immigrant detainees, whether or not they have prior criminal convictions, are unquestionably civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The Due Process Clause of the Fifth Amendment, which provides significantly greater protection than the Eighth Amendment’s ban on cruel and unusual punishment, safeguards the rights of civil detainees while in custody. As this Court has stated: When the government “so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety— it transgresses … the Due Process Clause.” ECF 64 at 19 (quoting DeShaney v. Winnebago Cty Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989).). As described above, Defendants have failed to provide reasonable safety. It is not enough for Defendants to mouth the right words, to simply say that they “are following all of the CDC guidelines.” Souza Dep. at 250. The question is whether the conditions at the facility actually provide the reasonable safety that the Constitution requires.
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They do not – as the individuals who actually live there have continuously attested to, in sobering detail. Nelly Floriano, the Nursing Supervisor responsible for the medical health of ICE detainees at BCHOC, may state in a declaration that she is “in the detainee units every work day” and therefore “confident that the detainee population is sufficiently low so as to allow adequate social distancing . . . to be practiced in all of the detainee units.” Floriano Decl., ¶¶ 1, 7. But in fact, she has never even seen the bathrooms in any unit, let alone the cells that are most over-crowded in 2 East. Floriano Dep. at 41-43, 45-46. Class members who actually live in these cramped spaces paint a starkly different picture. They describe units as “really crowded; there are constantly many people in any given room” with “people . . . always around each other’s bunks.” Declaration of Amiry Carlos Dias ¶ 2; Declaration of Isaac Doe ¶ 4. Class members are “living in the same room, breathing the same air.” Declaration of Amaury Reyes Batista ¶ 3. Because of the congregate living, with dozens of people per unit, it is “impossible to be able to effectively social distance.” Dias Decl. ¶ 2. This is because individuals are on top of each other every day, with shared bathrooms, recreation space, and meals. Doe Decl. ¶ 5. Even where changes have been made to sleeping arrangements to try and create some distance, there are simply too many people held in these units for this to be viable. Id. ¶ 3 (describing attempts to change sleeping arrangements in 2 East but noting its ineffectiveness “because there are too many people in the Unit to [limit the number of people per cell]”).
b. Defendants Have Taken Insufficient Steps In Light of Known Risk, Rising To the Level of Deliberate Indifference, and Such Conduct Will Continue Absent An Injunction
As this Court has recognized, the government must “at least” refrain from treating civil immigration detainees with deliberate indifference. ECF 64 at 19. This is so because deliberate indifference is the standard for a violation of a criminal detainee’s rights, and civil detainees are entitled to “more considerate treatment” than their criminal counterparts. Youngberg v. Romeo,
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457 U.S. 307, 321-22 (1982). Thus, if civil detainees prove deliberate indifference, they ipso facto will prevail on a Fifth Amendment claim.
Plaintiffs have a high likelihood of succeeding even under the higher deliberate indifference standard. As this Court has stated, where a safety risk is known, the deliberate indifference inquiry “asks whether the government disregards the risk by failing to take reasonable measures to abate it.” ECF 64 at 22-23 (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)); see also id. at 20 (a defendant is deliberately indifferent when it has “actual knowledge of impending harm, easily preventable, and yet fail[s] to take the steps that would have easily prevented that harm”) (citing Leite v. Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018)). Here, it is undisputed that Defendants have actual knowledge of the harms caused by COVID-19. Souza Dep. at 270-71; see also id. at 275 (staff provided with hazard pay due to risks of infection). Yet they have failed to take numerous reasonable measures that would have abated that risk.
Most notably, Defendants have not viewed release of class members – even under strict conditions such as electronic monitoring and home confinement – as an option to reduce risk of infection. Certainly Defendants undertook no voluntary releases before this lawsuit was filed. But even after the lawsuit was filed and this Court made clear that “the question is whether the government is taking reasonable steps to identify those Detainees who may be released in order to protect everyone from the impending threat of mass contagion,” ECF 64 at 23, Defendants still took no such steps. See Souza Dep. at 229-30. Even as to medically vulnerable class members, Defendants did not analyze the population to ascertain if any should be released or even monitored more closely. Souza Dep. at 81-82, 236-37; Floriano Dep. Tr. (Rough) at 95-96 (Q: “Is there any difference between how you treat [high-risk] detainees compared to detainees
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who are not at higher risk? A: No, there’s no difference right now. No. Not that I’m aware of. Q: So you’re not taking any additional steps to monitor those folks? A: No.”).
To the contrary, Defendants objected to release of every one of the individuals who came before this Court on an application for bail, insisting each day that “release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC,” even as to individuals with no criminal records or pending charges and those with significant health issues that made them uniquely vulnerable to COVID-19.10 Nor did Defendants ever alter their stance about the necessity of release to reduce risk of infection, even after numerous class members had been successfully released to their homes to safely quarantine there without incident. In fact, BCHOC’s nursing supervisor believes that population density is irrelevant to risk analysis. See Floriano Dep. (Rough) at 34.
Even more critically – and crucial to the need for injunctive relief – Defendants have made clear that, in their view, it would be perfectly fine to return to the population levels that existed at the start of this lawsuit. It is Defendants’ position that BCHOC could safely house today the exact same number of individuals that it held before the Court ordered releases. Souza Dep. at 242-43 (asserting that BCHOC could safely house “at least” 140 individuals); Floriano Dep. (Rough) at 30:16-24 (same). Sheriff Hodgson, who runs the facility, believes the Court’s bail orders were unnecessary and has not imposed any limit on the number of ICE detainees BCHOC will accept. Hodgson Dep. Tr. (Rough) at 82-83. Unless the Court imposes strict limits through a preliminary injunction, it is inevitable that pre-litigation density will return.
10 See ECF 50 (April 7 Input); ECF 58 (April 8 Input); ECF 67 (April 9 Input); ECF 75 (April 10 Input); ECF 79 (April 13 Input); ECF 80 (April 14 Input); ECF 85 (April 15 Input); ECF 88 (April 16 Input); ECF 94 (April 17 Input); ECF 102 (April 20 Input); ECF 105 (April 21 Input); ECF 111 (April 22 Input); ECF 116 (April 23 Input).
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Rather than analyze the health and safety risk in light of the current pandemic, Defendants continue to simply fall back on arguments that they are “under capacity.” Yet this fails to acknowledge that what may be a facility’s safe capacity in normal times is simply not relevant given the global health crisis of COVID-19. After all, public schools have safe “capacities” too, and yet State governments across the country have essentially deemed the safe capacity of schools at the current moment to be zero. But Defendants have not consulted any public health experts about what BCHOC’s safe capacity would be in this pandemic. Souza Dep. at 231. Defendants’ repeated “business as usual” stance and refusal to even consider viable options such as supervised release evinces precisely the type of deliberate indifference in the face of known risk that the Supreme Court has held violates the Eighth Amendment. It thus violates the less stringent Fifth Amendment standard applicable to civil immigration detainees.
On any number of other matters, Defendants purport to recognize the importance of public health measures but have dug in and asserted there is nothing else they could do protect class members. See Souza Dep. at 230 (“I believe we’re doing everything we possibly can.”); Floriano Dep. Tr. (Rough) at 32-33 (same). Thus, while acknowledging that “preventing infection requires vigilant social-distancing,” Souza Dep. at 308, Defendants have maintained conditions that make social-distancing – much less vigilant social-distancing – impossible. While knowing of serious COVID-19 outbreaks in detention facilities throughout the country, Defendants have taken no steps to ascertain whether BCHOC is doing anything different from any of those facilities. Souza Dep. at 217, 311-15; Floriano Dep. Tr. (Rough) at 104:3-105:12. VIII. The Potential For Irreparable Harm Is Great.
Medical and public health experts confirm that Defendants’ actions will cause severe injury and harm to Plaintiffs. This harm, serious illness or even death, is irreparable, as it “cannot adequately be compensated for either by a later-issued permanent injunction, after a full
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adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). Immediate relief and humanitarian release are essential to address the imminent hazards COVID-19 places upon Plaintiffs. Plaintiffs who contract COVID-19 as a result of their close confinement will have contracted an illness with no known cure that has led to a breathtaking loss of life. Gonsalves Decl., ¶ 5. This is true for all class members, as the disease does not discriminate based on age or health status. Id., ¶¶ 5, 7. And even absent a present outbreak, detainees sit as kindling waiting for a match to inevitably be struck. As a result, they currently are experiencing additional harms and reporting extreme levels of anxiety and fear. See, e.g., ECF 91-2 Supplemental Decl. of Menjivar-Rojas; ECF 91-4 Supplemental Decl. Keller ¶ 69; Guerrero Decl. ¶ 2 (describing panic attacks); Declaration of Isaac Doe ¶ 23 (“We’re right on top of each other. We’re sitting ducks.”). IX. The Balance Of Hardships And Public Interest Favor Plaintiffs.
Both the balance of equities and the public interest heavily favor the Plaintiffs. In normal times, crowding and close quarters, the sharing of toilets, sinks, and showers, and communal food preparation and service may be considered uncomfortable. However, these conditions present a deadly threat to Plaintiffs in light of COVID-19. This threat is compounded daily, as staff come through the facility after being in contact with outside communities, and as other transfers-in still occur from criminal custody. The threat and exceptional risk COVID-19 poses to the class vastly outweighs any interest Defendants may have in maintaining their detention.
Since immigration proceedings are civil and non-punitive, “[t]here is no sufficiently strong special justification . . . for indefinite civil detention.” Zadvydas, 533 U.S. at 690. In fact, ICE has significant discretion to release immigration detainees, see 8 U.S.C. § 1226(a), and has a long-standing practice of releasing for humanitarian reasons even those whose detention has been mandated under particular immigration detention statutes, see 8 U.S.C. § 1182(d)(5); §
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1225(b); § 1226(c). ICE regularly uses alternatives to detention to maintain custody and control over non-citizens in immigration proceedings, and is doing so for individuals whom the Court has released on bail. Defendants should not object to them here given the life-threatening conditions that exist in the immigration units of BCHOC. X. A Preliminary Injunction Is Warranted.
In light of the above, all of the requirements for issuance of a Preliminary Injunction are fully satisfied. Accordingly, Plaintiffs respectfully request a preliminary injunction that:
1. Orders Defendant to release a specified number of individuals within a specific timeframe. Alternatively, the Court could accomplish this through individualized bail determinations. While the Court’s orders to reduce BCHOC’s density have begun to alleviate the problem, much more remains to be done to reduce density to a level at which all individuals could safely socially distance. If the Court is not inclined to order Defendant to reduce the population, the Court could continue on the efficient, workable path that it has been on in considering individual applications for bail. Approximately 60 class members have been fully briefed and are under advisement and could be released at any time on the same conditions that the Court has ordered for other class members over the past several weeks.
Plaintiffs believe that the burden should be placed on Defendants to justify continued detention for any particular class member through clear and convincing evidence that the class member is a danger to the community, or to show by a flight risk by a preponderance of the, and show that alternatives to detention have been considered. See Gomes v. DHS, Civil No. 20-cv00453-LM (D.N.H.) (ordering that at the bail hearings, the respondents will have the burden to prove by clear and convincing evidence that each petitioner is either a danger to the public or a flight risk). See also Reid v. Donelan, 390 F.Supp.3d 201 (D.Mass., 2019); Brito v. Barr, 395 F. Supp.3d 135 (2019).
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2. Enjoins Defendants from increasing the population above a level the Court determines to no longer be unreasonably unsafe. Any injunction that does not include a provision enjoining Defendants from increasing the population will be fruitless and create a never-ending cycle of releases and new admissions. Since the point of the Court’s releases to date has been to reduce the overall density, an injunction enjoining Defendants from admitting new individuals is critical; otherwise, the Court’s efforts will have been for naught.
3. Enjoins Defendants from maintaining unreasonably unsafe conditions for the remaining detainees. Although this is a habeas action, the Court is empowered to remedy otherwise unconstitutional conditions of confinement. See Fox v. Lappin, 441 F.Supp.2d 203, 205-06 (D. Mass. 2005) “some conditions of confinement are appropriately brought as habeas petitions.”); see also Kane v. Winn, 319 F.Supp.2d 162, 215 (D. Mass. 2004). Such a remedy is appropriate here, and an injunction should include enjoining congregate sleeping spaces, ensuring adequate spacing in bathrooms, requiring regular professional cleaning of the facility, and ensuring provision of soap and sanitizer, as well as PPE.11
Finally, the Court has also taken under advisement Defendants’ suggestion that a Special Master be appointed. Plaintiffs agree that, should the Court issue a Preliminary Injunction, appointment of a Special Master to oversee compliance would be appropriate.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that a Preliminary Injunction issue.
11 While, to limit the spread of COVID-19, congregate sleeping facilities should be enjoined, class members remaining in the facility should not be subject to treatment that functionally mirrors solitary confinement, which is medically inappropriate, ineffective, and unlawfully punitive. See Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J. dissenting) (stating that “it is well documented that such prolonged solitary confinement produces numerous deleterious harms.”); see also note 8, supra.
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May 6, 2020 Respectfully Submitted,

/s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319)
Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor
Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern* Alden Pinkham, Law Student Intern*
Bianca Rey, Law Student Intern* Megan Yan, Law Student Intern*
Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Organization
P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Lisa Pirozzolo (BBO #561922) John Butts (BBO #643201)
Vinita Ferrera (BBO #631190) Felicia Ellsworth (BBO #665232) Nicole M.F. Dooley (BBO #690539) Annaleigh Curtis (BBO #696165)
Michael Brown (BBO #695276) Rama Attreya (BBO #699395)
Gary Howell-Walton (BBO #705470) Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street Boston, MA 021009 Lisa.Pirozzolo@wilmerhale.com

† Admitted pro hac vice. * Motion for law student appearances pending.
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Case 1:20-cv-10617-WGY Document 150 Filed 05/06/20 Page 26 of 26 CERTIFICATE OF SERVICE
I hereby certify that, on May 6, 2020 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system. Date: May 6, 2020 /s/ Lisa Pirozzolo_______________ Lisa Pirozzolo
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

DECLARATION OF OREN SELLSTROM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, Oren Sellstrom, hereby declare as follows: 1. I am the Litigation Director at the Lawyers for Civil Rights Boston, counsel for Plaintiffs in the above captioned matter. I am licensed to practice law in the Commonwealth of Massachusetts and am admitted to practice before this Court. 2. I make this declaration in support of Plaintiffs’ Motion for a Preliminary Injunction. 3. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs’ Notice of Rule 30(b)(6) Deposition of Bristol [County] House of Corrections, served on Defendants on April 26, 2020. 4. Attached hereto as Exhibit B is a true and correct excerpted copy of the rough transcript of the April 30, 2020 Deposition of Nelly Floriano. 5. Attached hereto as Exhibit C is a true and correct excerpted copy of the rough transcript of the May 5, 2020 deposition of Sheriff Thomas Hodgson.

Case 1:20-cv-10617-WGY Document 151 Filed 05/06/20 Page 2 of 2
6. Attached hereto as Exhibit D is a true and correct excerpted copy of the transcript of the May 1, 2020 deposition of Superintendent Steven Souza.
I declare under penalty and perjury of law that the foregoing is true and correct to the best of my knowledge.
Executed this 6th day of May, 2020, in Boston, Massachusetts. /s/ Oren Sellstrom__________
Oren Sellstrom (BBO #569045) Lawyers for Civil Rights
61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0606
onimni@lawyersforcivilrights.org
Dated: May 6, 2020
CERTIFICATE OF SERVICE I, Oren Sellstrom, hereby certify that a true and accurate copy of this document was served via ECF to all registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as nonregistered participants on May 6, 2020.
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EXHIBIT A

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,

Case No. 1:20-cv-10617 WGY

Respondent-Defendant.

PLAINTIFFS’ NOTICE OF RULE 30(B)(6) DEPOSITION OF BRISTOL COUNTRY HOUSE OF CORRECTIONS Please take notice that pursuant to Federal Rule of Civil Procedure 30(b)(6), Plaintiffs, by and through their counsel, will take the deposition upon oral examination of Bristol County House of Corrections (“BCHOC”) through one or more officers, directors, managing agents, or persons who consent to testify on its behalf with respect to the topics listed on the attached Schedule A. The deposition will take place at 9:00 a.m. on April 29, 2020 via remote video, or at such other time and location mutually agreeable to counsel. Plaintiffs request that BCHOC identify in writing at least two days in advance of the deposition the name(s) of the person(s) who will testify on its behalf and the subject(s) on which each person will testify.

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Case 1:20-cv-10617-WGY Document 151-1 Filed 05/06/20 Page 3 of 6
The deposition will be taken before a court reporter, notary public, or other person
authorized by law to administer oaths, and will be recorded by stenographic means and may also
be recorded using audio and visual equipment.
Counsel for Defendants is invited to attend and cross-examine the witness.
__/s/ Oren Sellstrom_____________________ Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal (pro hac vice) Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0606 onimni@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Laura Kokotailo, Law Student Intern* Aseem Mehta, Law Student Intern Alden Pinkham, Law Student Intern* Bianca Rey, Law Student Intern* Megan Yan, Law Student Intern* Muneer Ahmad† Reena Parikh† Michael Wishnie (BBO# 568654) Jerome N. Frank Legal Services Org. P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
* law student appearance pending
† admitted pro hac vice.
Dated: April 26, 2020
2
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SCHEDULE A DEFINITIONS AND INSTRUCTIONS Plaintiffs hereby incorporate by reference the definitions set forth in Rule 26.5 of the Local Rules of the United States District Court for the District of Massachusetts as if fully set forth herein. In addition, as used herein, the following words shall have the following meanings: 1. The terms “BCHOC”, “You” and “Your” shall mean and refer to the Bristol County House of Correction, all associated facilities that house civil immigration detainees, and all employees, agents, and officers thereof. 2. The terms “Plaintiffs” or “Plaintiff” shall mean and refer to Maria Alejandra Celimen Savino, Julio Cesar Medeiros Neves, and all those similarly situated (all immigration detainees in BCHOC). 3. The term “Defendants” shall mean and refer to, individually and together, the defendants in the above captioned case. 4. The term “COVID-19” shall refer to and encompass the “coronavirus” and SARS-CoV-2. 5. The terms “detain” or “detained” shall mean and refer to the holding, control, or transportation of any individual in civil immigration custody. 6. The term “concerning” shall mean referring to, relating to, describing, evidencing, constituting, reflecting, or in any way logically connecting to the matter discussed. 7. For the purpose of reading, interpreting, or construing the scope of these Topics, the terms used shall be given their most expansive and inclusive interpretation.
3
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8. The terms “and” and “or” must be read in both the conjunctive and the disjunctive wherever they appear, and neither of these words will be interpreted to limit the scope of a deposition topic.
9. The use of a verb in any tense will be construed as the use of the verb in all other tenses, and the singular form will be deemed to include the plural form and vice-versa.
10. Unless otherwise stated, the relevant time period for each topic below shall be February 1, 2020 to the present.
TOPICS FOR DEPOSITION 1. The protocols or procedures in place at BCHOC, and each subsidiary wing, department, component, or unit that relate to the containment, prevention, or treatment of COVID-19. 2. The protocols or procedures in place at BCHOC, and each subsidiary wing, department, component, or unit relate to the testing of officials, correctional officers, staff, and/or detainees for COVID-19, including but not limited to, type of tests or tests used, number of tests conducted, test results, testing capacity, testing location, names of individuals tested, title of the individuals tested if staff and type of detainee tested (e.g., immigration detainee, state detainee, or prisoner), and unit where the tested individual is primarily housed or works. 3. The protocols or procedures in place at BCHOC, and each subsidiary wing, department, component, or unit, regarding sanitation, hygiene, sleeping arrangements, dining, common areas, and recreation. 4. The health status of officials, correctional officers, staff or detainees who presented with symptoms of COVID-19, including, but not limited to, number of people who
4
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Case 1:20-cv-10617-WGY Document 151-1 Filed 05/06/20 Page 6 of 6
presented symptoms, what symptoms presented, whether those individuals were taken to a hospital off of the BCHOC property, whether the individuals were staff members or detainees and if staff, their title, whether those individuals were tested for COVID-19, what treatment was provided, and where the individuals work or were housed.
5. Communications between any combination of the following persons: Steven Souza, sheriffs, officials, staff, correctional officers, and ICE official, and detainees regarding COVID-19.
6. Communications between officials at BCHOC and detainees at BCHOC regarding the existent litigation Savino v. Souza.
7. The factual basis for Defendants’ representation that the “level of detainee population [is] sufficiently low so as to allow appropriate [Center for Disease Control]recommended social distancing at BCHOC.” See Defendant’s Input Regarding April 23 List, ECF No. 116 (April 23, 2020).
8. The factual basis for the statements in each declaration Defendants submitted in this litigation, including but not limited to Steven Souza’s representations that: (a) “BCHOC has implemented very strict and practical policy and safety measures that ensure the health of all its inmates and detainees during this pandemic”; (b) “sleeping and living arrangements in all Units where detainees reside permit for social distancing recommended by the Center for Disease Control [] to occur on a full time basis”; (c) “maximum steps have been taken to minimize the risk of a COVID-19 infection and any spread”; and (d) “in the unlikely event an infection does occur, the facility is equipped with the tools to address the issue promptly and appropriately.”
5
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EXHIBIT B

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 2 of 41

Page 1

1

2

NOTICE

3

4

5 This transcript is an UNCERTIFIED ROUGH DRAFT

6 TRANSCRIPT. It contains the raw output from the

7 court reporter's stenotype machine, translated into

8 English by the court reporter's computer, without

9 the benefit of proofreading. It will contain

10 untranslated steno outlines, mistranslations (wrong

11 words), and misspellings. These and any other

12 errors will be corrected in the final transcript.

13 Since this rough draft transcript has not been

14 proofread, the court reporter cannot assume

15 responsibility for any errors therein.

16 This rough draft transcript is intended to assist

17 attorneys in their case preparation and is not to be

18 construed as the final transcript. It is not to be

19 read by the witness or quoted in any pleading or for

20 any other purpose and may not be filed with any

21 court.

22

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 3 of 41 6 A There is a medical office, yes. 7 Q And so there is a separate one for each 8 unit? 9 A Yes. 10 Q And when you go to visit the units, is it 11 fair to say that you spend your time in that 12 medical office? 13 A I do go into the medical office. When I 14 go to ICE, the ICE building, B unit and A unit, I 15 do go through the unit and speak to some of them 16 when I am make -- go -- on my way to the office. 17 Q Speak to some of the detainees? 18 A Yeah. 19 Q And so generally where would you be 20 speaking to them? What area of the unit would you 21 be speaking to them? 22 A Right outside the office, the medical 23 office. 24 Q So would you typically go into the bunk
Page 19
1 area? 2 A I don't go into the bunk area. But 3 I'll -- if I go down to the security desk, on my 4 way to security, if I see a detainee, I do greet

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 4 of 41 5 them. 6 Q Would you typically go into their common 7 dining area? 8 A Not necessarily, no. 9 Q You wouldn't typically go into the 10 bathroom. Right? 11 A No. 12 Q And you wouldn't typically go into the 13 visitor's room? 14 A No. 15 Q The classroom? 16 A No. 17 Q The outdoor recreation area? 18 A No. 19 Q So on any given day if you could give an 20 estimate, how many ICE detainees do you think you 21 come in contact with? 22 A Probably, I would say, six to ten maybe. 23 Q And about how many nonICE detainees, so 24 inmates from other units?
Page 20
1 A Probably three or four. That's an 2 estimate. I'm not sure. It could vary. 3 Q And so just to go back to your education

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 5 of 41 4 a little bit.

5

An LPN is a generalized program. Right?

6 A I'm sorry, could you repeat that?

7 Q An LPN is a generalized program. Right?

8 A It's a nursing program.

9 Q So you don't -- the program doesn't train

10 you to be a specialist in anything. Correct?

11 A No. No.

12 Q So it doesn't train you to be a

13 specialist in infectious disease?

14 A No. There's seminars and classes you

15 could take for that, but I have not.

16 Q Okay.

17 A At the time.

18 Q And COVID-19 is a new virus. Right?

19 A Correct.

20 Q Have you taken any specialized training

21 or done any course work on stopping the spread of

22 the COVID-19 virus?

23 A Here in the facility, with the director

24 of nursing.

Page 21
1 Q Great. And so when was that? 2 A We meet weekly.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 6 of 41 3 Q And for how long?

4 A We have been discussing it since the

5 pandemic, we started discussing it.

6 Q So do you -- approximately when would you

7 put that?

8 A I would say beginning of March.

9 Q And about how long do those meetings

10 last?

11 A That varies as well. I would say at

12 least an hour.

13 Q And what is discussed during those

14 meetings?

15 A We discuss what measures we would take,

16 if needed be; what units we would use to isolate

17 and quarantine anyone that potentially had the

18 virus.

19

We discussed the equipment. We -- they

20 update us on the guidelines.

21 Q And who is the Director of Nursing?

22 A Barbara Bell.

23 Q And can you just spell the last name?

24 A B-E-L-L.

Page 22 1 Q And so it's Barbara, B-A-R-B-A-R-A?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 7 of 41 2 A Yes. And also Maureen Atkins, which is 3 the head of the department, medical department. 4 Q And is she a doctor, a nurse, or -5 A Nurse. 6 Q And so is everything that you discussed 7 during those weekly meetings related to COVID-19? 8 A Yes. The weekly meetings actually 9 started the beginning of April. We would discuss 10 and meet, but it wasn't routine meetings until 11 April, the beginning of April. 12 Q Okay. Oh, in March it was approximately 13 how many of these meetings? 14 A It was just updates on the CDC 15 guidelines. 16 Q And are you the only person who attends 17 these meetings? 18 A No. Nurses. Nurses. 19 Q All of the nurses? 20 A Yes. They're all invited to attend. 21 Q Sorry. I just -22 A I apologize. I said they're all invited 23 to attend. 24 Q But they are not required?
Page 23

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 8 of 41 1 A It is not mandatory, no. 2 Q Do all of them show up? 3 A A majority, not all. They are updated 4 after. Whoever does not attend gets an update on 5 what the meeting was about. 6 Q And do you provide that update? 7 A No. Barbara, the director of nurses. 8 Q And I don't think I caught it. Barbara 9 bell, is she a nurse as well? 10 A Yes. 11 Q And so are her and Maureen Atkins both 12 RNs, registered nurses? 13 A Barbara is an LPN. 14 Q Barbara is an LPN. Okay. But Maureen is 15 a registered nurse? 16 A Barbara is an LPN and Maureen is an RN. 17 Q And can you give me a general idea of how 18 those meetings occur? What happens during those 19 meetings? 20 A We just -- they just update us if there's 21 any changes on the guidelines. Like if there's 22 changes to the units or them' give us an update on 23 the guidelines if there was an update on the CDC 24 guidelines. We just go over that. And they see
Page 24

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 9 of 41
1 if there's any questions or concerns. 2 Q And so is it just a verbal update from 3 Barbara or -4 A No. It's a meeting minute. 5 Q And so it's kind of like a memo that 6 summarizes the update? 7 A Yeah. 8 Q And do you discuss what's happened on the 9 unit the week before? 10 A No. 11 Q Okay. So it is just an update on the 12 guidelines? 13 A Yeah, just an update on the guidelines. 14 Q And do you discuss how measures that have 15 been taken previously have been working? 16 A Yes, we do. 17 Q And is that raised by the nurses or by 18 Maureen and Barbara? 19 A By the staff, I'd say. 20 Q Have you received any other training on 21 COVID-19? 22 A No. 23 Q Do you know if the nurses on your staff 24 have received any other training on COVID-19?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 10 of 41

Page 26

1 Q So you're not aware that the droplets

2 could go farther than 6 feet?

3 A No.

4 Q And what's the basis for your knowledge

5 of the 6 feet figure?

6 A Just social distancing at least 6 feet.

7 Q And so I'm just trying to get out where

8 did you get your information on social distancing?

9 A CDC.

10 Q And so you're not aware that it can go --

11 that the virus can be spread further than 6 feet

12 from an infected person?

13 A No. I just -- I just know that to at

14 least be 6 feet away from someone.

15 Q Would you agree that the virus can live

16 on hard surfaces for hours and can be spread if

17 someone else touches a surface?

18 A Yes.

19 Q And is that true of the tables and chairs

20 in the detainees' unit areas?

21

MR. KANWIT: Objection.

22 Q You can answer.

23

THE WITNESS: I can answer?

24

MR. KANWIT: Yes.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 11 of 41 22 more detainees on bail?
23 A Yes.
24 Q And you wanted that motion to be granted.

Page 30

1 Right?

2

MR. KANWIT: Objection.

3 Q You can answer.

4 A Yes.

5 Q Do you understand that since this case

6 was filed, judge young has reduced the detainee

7 population by nearly a third?

8 A Yes.

9

MR. KANWIT: Objection.

10 Q Do you think that that was a necessary

11 step?

12

MR. KANWIT: Objection.

13

THE WITNESS: I can answer?

14

MR. KANWIT: Yes. If you have an answer.

15 A I really don't have an answer.

16 Q So you think that before detainees were

17 released, they were safe from COVID-19 in the

18 Bristol facility?

19 A Yes.

20 Q And so there was no reason for the judge

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 12 of 41 21 to order those people released?

22

MR. KANWIT: Objection.

23 Q You can answer.

24 A No.

Page 31

1 Q No, there was no reason for the judge to

2 order them released?

3 A No.

4 Q Are ICE detainees at risk for contracting

5 COVID-19 while detained in Bristol?

6

MR. KANWIT: Objection.

7 Q Sorry, do I need to repeat my question?

8 A Yes, please.

9 Q Are ICE detainees at risk for contracting

10 COVID-19 while detained in Bristol?

11

MR. KANWIT: Objection.

12

Are you comparing that to if they weren't

13 at Bristol?

14

MS. FONTAINE DOOLEY: I'm not making any

15 comparison. I'm just asking are they at risk

16 while they're at Bristol.

17

MR. KANWIT: Objection. I think it is a

18 misleading question and it implies a comparison.

19 Q That's fine. You can answer.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 13 of 41 20 A I feel that anyone could be at risk. I

21 don't -- I ...

22 Q Has their level of risk changed over the

23 last six weeks?

24

MR. KANWIT: Objection.

Page 32
1 A No. 2 Q So at any point since March 1, did you 3 make any recommendations to anyone at Bristol as 4 to steps that could be taken to better protect 5 detainees from COVID-19? 6 A The steps we just educate everyone about 7 personal protective equipment, disinfecting, and 8 we also let the detainees as well, the importance 9 of hand washing and disinfecting and they've also 10 been provided with masks, so they have PPE. 11 Q And so did you -- sorry, did you make any 12 of those recommendations, or were those 13 recommendations that you were following? 14 A Following. 15 Q Have you separately made any 16 recommendations for any steps that can be taken at 17 Bristol to prevent the spread of COVID-19? 18 A No.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 14 of 41 19 Q So you haven't made any recommendations 20 that weren't ultimately adopted? 21 A No. 22 Q Is there anything at all that you think 23 Bristol should be doing differently to protect 24 detainees from COVID-19?

Page 33

1 A No.

2 Q So everything at Bristol is perfect from

3 your perspective in that arena?

4

MR. KANWIT: Objection.

5 A I feel that we're doing a good job right

6 now, and what we have in place is working.

7 Q And you wouldn't change anything?

8

MR. KANWIT: Objection.

9 A No.

10 Q Has anyone else -- have any of the other

11 nurses made any recommendations to Bristol as to

12 steps that could be taken to prevent the spread of

13 COVID-19 amongst detainees?

14 A No.

15 Q So no one has raised concern at those

16 weekly meetings about things that could be done

17 differently?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 15 of 41 18 A No.

19 Q And so as a healthcare professional, it

20 is not your opinion that detainee risk of

21 contracting COVID-19 has gone down as a result of

22 the release of detainees by the court?

23

MR. KANWIT: Objection as to form.

24 Q Can you answer my question, or would you

Page 34
1 like me to rephrase? 2 A I would say no. 3 Q So, no, the risk -- the detainee risk of 4 contracting COVID-19 has not gone down as a result 5 of the court's order to release individuals from 6 Bristol? 7 A No. 8 Q And are you aware of any informal 9 discussions between nurses about concerns they 10 have about the steps Bristol is taking to prevent 11 the spread of COVID-19? 12 A No. 13 Q What is your understanding of the public 14 health guidance with regard to social distancing? 15 A Can you say that again. I'm sorry. 16 Q Yeah. No problem. What is your

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 16 of 41 17 understanding of the public health guidance with 18 regard to social distancing? 19 A The importance of being at least 6 feet 20 apart from someone. 21 Q And what's the purpose of that? 22 A Because of the spread of COVID with the 23 droplets amongst sneezes, coughs. 24 Q It could go up to 6 feet, in your

Page 35

1 understanding?

2 A Yeah.

3

MS. FONTAINE DOOLEY: I'm going to mark

4 the facility diagram as Exhibit 2, please.

5

(Floriano Deposition Exhibit 2 marked for

6 identification and is attached to the transcript.)

7 Q Do you recognize this document?

8 A I have never seen it before.

9 Q So you can go ahead and take a moment to

10 review it. I will represent to you that this was

11 submitted by the government in support of its

12 motion to stay further releases from Bristol.

13

Let me know when you are all set with

14 reviewing it.

15 A Okay.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 17 of 41 11 A Yeah. 12 Q And in the -- in 2 East, in that unit, 13 there are group cells. Correct? 14 A Yes. 15 Q And how many people are in each cell? 16 A I'm not sure exactly how many they have 17 in each cell. 18 Q Do you know how many each cell can hold? 19 A I'm not sure if it's -- I'm not sure off 20 the top of my head. No, I'm not. 21 Q Are there bunk beds in those cells? 22 A Yes. 23 Q And are some bunk beds occupied by two 24 people?
Page 41
1 A I'm not sure. 2 Q Are some of the bunk beds arranged within 3 6 feet of one another? 4 A I'm not sure. 5 Q Bathrooms are communal for all the units. 6 Right? 7 A Yes. 8 Q If there are two bathrooms to a unit is 9 there any restriction on which one certain inmates

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 18 of 41 10 with use, or certain detainees can use? 11 A I'm not sure. 12 Q Are there any restrictions on when 13 detainees can use bathrooms? 14 A No. Not that I'm aware of. 15 Q How about the sinks, showers, or toilets 16 within a bathroom. Are there any restrictions as 17 to which one a detainee can use? 18 A Not that I'm aware of. 19 Q So for Unit A, are the toilets more or 20 less than 6 feet apart from one another? 21 A I'm not sure. I never went into the 22 bathroom. 23 Q Oh, okay. So you have never been in the 24 bathroom?
Page 42
1 A No. 2 Q And no one has ever told you the 3 arrangement of the bathroom? 4 A No. 5 Q And that's the same for all of the units? 6 A That I'm unaware? 7 Q Yes. 8 A Yes.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 19 of 41 9 Q Right. Okay.

10

In the dining areas, are there any

11 restrictions on how close detainees can sit with

12 one another?

13 A Not that I'm aware of. I'm not sure.

14 Q So you're not aware of any restrictions?

15 A I am not aware, no.

16 Q Do you know how close the detainees do

17 sit next to one another during meal times?

18 A I do not.

19 Q Do you know if there's been any change in

20 how close they sit to one another during meal

21 times since the start of the COVID-19 outbreak?

22 A I am not aware. I'm not sure.

23 Q Just to go back to the bathrooms just to

24 confirm.

Page 43

1

So you don't know how close the showers

2 are to one another?

3 A No.

4 Q You don't know how close the toilets are

5 to one another?

6 A No.

7 Q And you don't know how close the sinks

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 20 of 41 8 are to one another?

9 A No.

10 Q And that's true for Unit A. Correct?

11 A Yes.

12 Q And Unit B?

13 A Yes.

14 Q And Unit 2 East?

15 A Yes.

16 Q And Unit EB?

17 A Yes.

18 Q Okay.

19

MS. FONTAINE DOOLEY: So we have been

20 going for about an hour. Is now a good time for a

21 break, Tom?

22

MR. KANWIT: It's fine. How much longer

23 do you think you'll have?

24

MS. FONTAINE DOOLEY: I have a ways to

Page 44

1 go. I'd say we have at least another hour.

2

MR. KANWIT: Okay. Yeah, then I think a

3 short break would be good.

4

MS. FONTAINE DOOLEY: Okay.

5

MR. KANWIT: How long do you think,

6 Nicole?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 21 of 41

7

MS. FONTAINE DOOLEY: Maybe ten minutes

8 if that works for you.

9

MR. KANWIT: Yeah, that's fine.

10

MR. BUTTS: Ms. Floriano, you are doing

11 most of the work here. How much time would you

12 like?

13

THE WITNESS: About 15 minutes if that's

14 okay.

15

MR. BUTTS: That sounds great.

16

MS. FONTAINE DOOLEY: That works for us.

17

MR. BUTTS: I have 12:10 on my clock. So

18 thereabouts, that sounds great.

19

THE WITNESS: Thank you.

20

(A recess was taken.)

21 BY MS. FONTAINE DOOLEY:

22 Q Welcome back, Ms. Floriano.

23

Did you speak with anyone about the

24 substance of your testimony during the break?

Page 45
1 A No, I did not. 2 Q Going back to the seg units. Can you 3 describe how those -- I believe you said it was -4 A The seg units. 5 Q Yes. EA and EC, how are they set up? So

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 22 of 41 6 let's start with EA. 7 A EA? 8 Q Yes. 9 A They are single cells, I believe. 10 Q So single occupancy cells? 11 A Yes. 12 Q And can you give me a layout of the cell? 13 A No, I could not. 14 Q Okay. Do the cells each contain -- or 15 each include a toilet? 16 A Yes. 17 Q And a shower? 18 A No. 19 Q Are there communal showers that people 20 who are housed in unit EA use? 21 A Yes. 22 Q And are those showers shared with any 23 other units or is it just limited to EA? 24 A Just EA.
Page 46
1 Q And do you know how far apart those 2 showers are from each other? 3 A No, I do not. 4 Q How many showers are there for that unit?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 23 of 41 5 A I am not sure. 6 Q Are there any communal toilets for that 7 unit? 8 A I'm not sure. 9 Q Communal sinks? 10 A I'm not sure. 11 Q And for unit EC, how are the cells laid 12 out? 13 A The cells? I'm not sure if they're 14 single cell or not. I believe they are, but I'm 15 not sure. 16 Q Do each of them contain a toilet? 17 A I'm not sure. 18 Q Do they contain a shower? 19 A No. They do contain a toilet. 20 Q Do people housed in EC use a communal 21 shower? 22 A Yes. 23 Q And is that communal shower shared with 24 any other unit?
Page 47
1 A No. 2 Q Do you know how many showers are 3 included?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 24 of 41

Page 53

1 Q Has there been any changes to detainee

2 placement within the bunk room, that you're aware

3 of, since April 14?

4 A No.

5 Q We can move on from this exhibit.

6

Does Bristol have a policy with regard to

7 staff members' use of personal protective

8 equipment?

9 A Yes.

10 Q And what is that policy?

11 A We are all to use face masks when we come

12 in. If -- if in nursing, anyone is reporting any

13 symptoms, we use a face mask with a shield,

14 gloves, and gown. If we interact with anyone with

15 possible symptoms.

16 Q So you don't wear gloves on a daily

17 basis?

18 A The nurses do during med pass and when

19 assessing. But I don't keep -- I don't wear

20 gloves all day long, no.

21 Q But you do wear a face mask all day long?

22 A I do.

23 Q And what is med pass?

24 A When we administer medication.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 25 of 41 8 Q So you're not aware of any restrictions?

9 A I'm not aware, no.

10 Q Any prohibitions on other employment?

11 A Say that again. I'm sorry.

12 Q Are there any prohibitions on other

13 employment?

14

So can nurses and doctors hold another

15 job --

16 A I'm not -- I don't know.

17 Q -- at Bristol?

18 A I'm not aware. I don't know if there's a

19 policy on that. I don't know.

20 Q Do you know of any nurse or doctor who

21 works at another job?

22 A No.

23 Q So you're not aware of anyone doing

24 shifts at a hospital, for instance?

Page 71
1 A No. 2 Q Not in a nursing home? 3 A I'm aware of one nurse that has another 4 job. 5 Q And she works in a nursing home? 6 A Yes.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 26 of 41 7 Q Does anyone work as a home health aide? 8 A I don't know. 9 Q Does anyone work at another correctional 10 facility? 11 A Yes. 12 Q How many people work at another 13 correctional facility? 14 A One. 15 Q And is that a nurse? 16 A Yes. 17 Q And so who was the nurse who works at a 18 nursing home? 19 A Her name? 20 Q Yes. 21 A Her name is Ashley. 22 Q Last name? 23 A She just changed her last name. I want 24 to say it's Frois, F-R-O-I-S, I believe.
Page 72
1 Q And do you know what nursing home she 2 works at? 3 A No. 4 Q And the nurse who works at another 5 correctional facility, what's her name?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 27 of 41 5 A That varies. I'm not sure. 6 Q Would you say it's five, ten? 7 A I'm not sure because I'm -- I don't do 8 security. I'm not sure. 9 Q Do you know if any of them work in other 10 areas at Bristol, besides the ICE units? 11 A I'm not sure. 12 Q What about doctors; do the detainees have 13 contact with doctors? 14 A They have contact with the nurse 15 practitioners, yes. 16 Q But not with doctors? 17 A The doctor right now is working through 18 tele health. 19 Q Okay. So for the nurse practitioner 20 then, do you know -- you said there were two nurse 21 practitioners working on the ICE units. Is that 22 right? 23 A Yes, they work for medical, yes. 24 Q So they work for all inmates at Bristol,
Page 74
1 not just ICE detainees? 2 A Correct. 3 Q And what about food service workers; are

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 28 of 41 4 there any food service workers that the ICE 5 detainees come in contact with? 6 A No. Not that I'm aware of. No. 7 Q Social workers? 8 A Not sure. I know of nurses and mental 9 healthcare workers. 10 Q Okay. And the mental healthcare workers, 11 what is their role? 12 A They see them for any mental health 13 issues. 14 Q How many mental health workers are there, 15 approximately? 16 A Approximately seven. 17 Q And do they work with all detainees and 18 inmates at Bristol or just the ICE detainees? 19 A Inmates and detainees. 20 Q Are there any other types of staff 21 members that you can think of that the ICE 22 detainees would come in contact with? 23 A No. Not off the top of my head, no. 24 Q Any nonstaff members?

1 A No. 2 Q Volunteers?

Page 75

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 29 of 41 11 Q And do you know if the contact tracing 12 that we talked about for the nurse was done for 13 the other individuals who tested positive for 14 COVID-19? 15 A I'm not aware. I don't know. 16 Q Do you know if -- do you know how far 17 back the contact tracing goes from the date of the 18 test? 19 A I do not. 20 Q What is the protocol that would be 21 followed if a detainee had a positive COVID-19 22 test? 23 A If they have a positive COVID-19 test? 24 Q Yes.
Page 95
1 A They would be -- they would be in 2 isolation. The nurse would be assessing their 3 vital signs twice a day. They would be checking 4 to -- you know their lung sounds, you know, 5 reviewing any symptoms, any shortness of breath, 6 any chest pain, monitoring their fever, treating 7 them for their symptoms. 8 Q And would they have been put in 9 isolation?

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 30 of 41 10 A Yes. 11 Q And has this protocol been initiated for 12 anyone? 13 A No, we haven't had anyone positive. 14 Q Do you understand that certain people are 15 at higher risk for contracting COVID-19? 16 A Yes. 17 Q And do you understand that certain people 18 are at higher risk for developing a serious 19 illness as a result of COVID-19? 20 A Yes. 21 Q Is there any difference between how you 22 treat those detainees compared to detainees who 23 are not higher risk? 24 A No, there's no difference right now. No.

Page 96

1 Not that I'm aware of.

2 Q So you're not taking any additional steps

3 to monitor those folks?

4 A No.

5 Q If you can just give me one minute, I'm

6 just going to take a look at my notes to make sure

7 we're on track.

8

MS. FONTAINE DOOLEY: All right. Would

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 31 of 41 9 you mind if we took a five-minute break, Tom?

10

MR. KANWIT: I wouldn't. I'd like to

11 have some sense of how much longer you think we

12 are going to go.

13

MS. FONTAINE DOOLEY: I don't think it

14 will be very much longer at all.

15

MR. KANWIT: Okay. That's fine.

16

MS. FONTAINE DOOLEY: Ms. Floriano, that

17 okay with you? Would you like a little bit longer

18 of a break?

19

THE WITNESS: Me?

20

MS. FONTAINE DOOLEY: Yes.

21

THE WITNESS: Oh, I'm fine. Thank you.

22

MS. FONTAINE DOOLEY: Okay. Great. So I

23 think let's come back at -- let's just say 1:40 to

24 make it a round number.

Page 97

1

MR. BUTTS: Nicole, why don't we go to a

2 quarter of, and Tom and Nelly, just for your

3 benefit, we're hoping to wrap it up within a few

4 minutes after that. So let me just see if there

5 is anything else we want to touch on. But it

6 shouldn't be very long.

7

MR. KANWIT: That's fine.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 32 of 41

8

MS. FONTAINE DOOLEY: Okay. Great.

9

(A recess was taken.)

10 BY MS. FONTAINE DOOLEY:

11 Q So welcome back.

12

Did you discuss the substance of your

13 testimony with anyone during the break?

14 A No.

15

MS. FONTAINE DOOLEY: All right. So I am

16 going to ask if we could park the CPS guidelines

17 at Exhibit 3.

18

(Floriano Deposition Exhibit 3 marked for

19 identification and is attached to the transcript.)

20 Q So Ms. Floriano, you are being shown

21 Exhibit 3.

22

Do you recognize this document?

23 A I do.

24 Q What is it?

Page 98
1 A It's the CPS guidelines for COVID. 2 Q And to your knowledge, are these the 3 current guidelines? 4 A No. 5 Q Let's go through them as we have them 6 here, and then I will ask you about changes.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 33 of 41

7

So if you look at the top here, you have

8 a list of COVID-19 coronavirus symptoms. Is that

9 correct?

10 A Yes.

11 Q And so you listed before the symptoms

12 that might lead to test being.

13

Do you explain to me exactly how it is

14 determined whether a detainee needs a COVID-19

15 test?

16 A Two or more symptoms. But the

17 symptoms -- we have more symptoms listed now on

18 our updated guidelines. We have body aches,

19 headache, vomiting, nausea, and an additional one

20 of increased confusion in the elderly.

21 Q And so it could be any two of the

22 symptoms listed or the ones that you just listed

23 for the updated guidance?

24 A Correct.

Page 99
1 Q And only four people have presented with 2 those symptoms in the last month, with two or more 3 of those symptoms in the last month? 4 A That I'm aware of. 5 Q And who makes the determination about

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 34 of 41 6 whether or not a test is required? 7 A What we do is, if a detainee reports any 8 symptoms to the nurse, either by sick slip or 9 verbally, they are to contact the nurse 10 practitioner and let them know that someone is 11 reporting symptoms. 12 Q And then the nurse practitioner decides 13 if a test is required? 14 A Correct. 15 Q Do you have discretion to order a test 16 outside of these guidelines? 17 A I personally do not. 18 Q Does a nurse practitioner have discretion 19 to order a test outside of these guidelines? 20 A I am not sure. 21 Q Do you know if a nurse practitioner has 22 ever ordered a test outside of these guidelines? 23 A I know before we would do a strep test, 24 and then we would do the flu as well. But we are
Page 100
1 no longer doing that. We go right to the COVID 2 screening. Other than that, I don't know of any 3 other testing they have ordered. 4 Q So you're not doing influenza A and B

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 35 of 41 4 A Yes.

5 Q Have you ever had trouble getting in

6 touch with them?

7 A No.

8 Q Have you ever recommended to a nurse

9 practitioner that there be a test?

10 A Honestly, I haven't had to. Because

11 anyone that I thought that might -- should be

12 tested, they've decided to test.

13 Q And is that true for -- you've never

14 heard of another instance of someone making a

15 recommendation to a nurse practitioner to test

16 that was reduced?

17 A No, I have never heard.

18 Q So you're in regular contact with nurses

19 and staff at Bristol. Right?

20 A Correct.

21 Q And have you had any conversation in the

22 last two months about safety issues related to

23 COVID-19?

24

MR. KANWIT: Objection.

Page 102
1 A No, not that I can think of at this 2 moment.

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 36 of 41 3 Q Okay. So nothing related to inmate or

4 detainee safety?

5

MR. KANWIT: Objection. She's talked

6 about training. She's talked about a number of

7 conversations already.

8

MS. FONTAINE DOOLEY: Right.

9 Q I'm asking about conversations that you

10 have had.

11

Do you recall any conversations that you

12 have had in the last two months about concerns

13 about detainee safety relating to COVID-19.

14

MR. KANWIT: And I object.

15 A We have discussed how to continue to keep

16 people safe, but no concerns about them not being

17 safe.

18 Q So I guess you're right, that's what I am

19 getting at.

20

No one has expressed, you have not heard

21 anyone express concerns about detainee safety in

22 light of COVID-19 in the last two months?

23 A Correct.

24

MR. KANWIT: Objection.

Page 103 1 Q And you have not heard anyone express

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 37 of 41 2 concerns about staff safety in light of COVID-19

3 in the last two months?

4

MR. KANWIT: Objection.

5 A I have not.

6 Q And you haven't expressed any concerns to

7 anyone else inside the facility. Is that right?

8 A Can you just repeat that one more time.

9 I'm sorry.

10 Q Yeah. So you haven't expressed any

11 concerns about detainee or staff safety to anyone

12 inside the facility. Correct?

13

MR. KANWIT: Objection.

14 A Correct.

15 Q And you haven't expressed any of those

16 concerns to anyone outside of the facility.

17 Correct?

18

MR. KANWIT: Objection.

19 A Correct.

20 Q And you're not aware of anyone saying --

21 any staff member within the facility saying that

22 Bristol should be doing something different in

23 response to COVID-19?

24

MR. KANWIT: Objection.

Page 104

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 38 of 41 1 A No.

2 Q Sorry, I didn't quite hear your answer.

3 A No one has discussed that with me.

4 Q And no one has been critical of the

5 Bristol practices in response to COVID-19 to you?

6

MR. KANWIT: Objection.

7 A Not to me, no.

8 Q So are you aware that there's been

9 several correctional facility outbreaks of

10 COVID-19?

11 A I have -- I've been told that there's

12 been other facilities that have had outbreaks.

13 Q Have you heard of outbreaks at

14 MCI-Shirley, Bridgewater, or MC-Framingham --

15 MCI-Framingham?

16 A Bridgewater, I had heard of.

17 Q Are you following that outbreak at all --

18 A I am not.

19 Q -- in the news? Okay.

20

Have you thought about changing anything

21 as a result of that outbreak for Bristol?

22

MR. KANWIT: Objection.

23 A No.

24 Q Do you know of anybody else who is

Page 105

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 39 of 41

1 following those outbreaks and suggesting changes

2 as a result?

3 A I'm not aware of anyone, no.

4 Q Do you know if there are different

5 practices put in place at Bristol as compared to,

6 for instance, MCI-Shirley?

7

MR. KANWIT: Objection.

8 A I'm not aware, no.

9 Q Has there been any consideration of

10 lessons learned from those outbreaks?

11

MR. KANWIT: Objection.

12 A I'm not aware. I'm not sure.

13 Q And just going back to the testing for a

14 brief moment.

15

So we talked about the ICE detainees who

16 have been tested. I believe you said there were

17 four. Right?

18 A Correct.

19 Q So facility-wide, how many inmates and

20 detainees have been tested for COVID-19?

21 A I wouldn't know the exact number.

22 Q Do you have a ballpark guess?

23 A Ballpark guess?

24

MR. KANWIT: No. Let me object. I don't

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 40 of 41 20 each other if they were 6 feet apart, in your 21 opinion? 22 A I don't know how the showering takes 23 place there. I haven't seen the bathrooms. I'm 24 not familiar.

Page 113

1 Q And what about in 2 East; is it okay for

2 multiple people to share a cell, I believe they're

3 30 by 10 feet?

4 A I would have to actually visually see it.

5 I can't just by dimensions visualize it. I

6 apologize.

7 Q That's okay. So you're just not sure if

8 people are able to socially distance within 2

9 East?

10 A I'd have to see the layout of the unit.

11 I -- I know the rec area where I've been, there's

12 plenty of room for them to social distance.

13 Q So they can socially distance in the rec

14 area. You but you can't offer an opinion whether

15 or not they can socially distance in their cells?

16 A I haven't seen their cells.

17 Q Understood.

18

MS. FONTAINE DOOLEY: Okay. I think

Case 1:20-cv-10617-WGY Document 151-2 Filed 05/06/20 Page 41 of 41 19 that's all I have. Thank you.

20

MR. KANWIT: Nothing further from me.

21 Thank you.

22

THE WITNESS: Thank you.

23

24

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 1 of 15
EXHIBIT C

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 2 of 15 1

1 ************************************************** REPORTER'S NOTE:
2

3

REALTIME ROUGH DRAFT: These

stenographic notes are being translated

4 instantaneously into their English equivalent

through an automated process called realtime

5 translation. The realtime draft is unedited and

uncertified, and may contain untranslated

6 stenographic symbols, and occasional reporter's

note, a misspelled proper name and/or nonsensical

7 word combinations. All such entries will be

corrected on the final certified transcript. Due

8 to the need to correct entries prior to

certification, the use of this realtime draft is

9 intended and should be used only for the purpose

of augmenting counsel's notes, and not to use or

10 cite in any courts/official proceeding.

11

Since this transcript is in uncertified

rough draft form, please be aware that there may

12 be a discrepancy regarding page and line number

when comparing the rough draft and the final

13 certified transcript.

14 **************************************************

15

16

17

18

19

20

21

22

23

24

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 3 of 15 19 about these releases? 20 A I did. I did. I wanted to make them 21 aware. That's my job. 22 Q And has ICE inquired what Bristol is 23 doing regarding testing for COVID-19? 24 A They may have with -- as I said, with
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 35
1 the superintendent. 2 Q And have they provided any 3 requirements? 4 A We have standard protocols; I'm sure 5 they're aware of it. If they had a problem with 6 it I'm sure they would have notified the 7 superintendent. 8 Q How do you communicate with ICE about 9 the number of civil immigration detainees that you 10 have at Bristol? 11 A I beg your pardon. 12 Q How do you communicate with ICE about 13 the number of civil immigration detainees that you 14 have at Bristol? 15 A Well, they're not all civil 16 immigration -- I don't think they're all civil 17 detainees. Some of them have -- are here on

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 4 of 15 18 criminal charges.

19 Q Let me rephrase the question.

20

How do you -- how do you communicate

21 with ICE about the immigration detainees?

22 A How do I personally?

23 Q Yes.

24 A I don't really. Other than the

ROUGH DRAFT - THOMAS HODGSON 5-5-2020 36

1 conversations I just relayed to you. 2 Q So other than conversations about 3 releases, you don't communicate with ICE about the 4 number of civil immigration detainees? 5 A No, I don't. 6 Q In your conversations with Brian, did 7 he ask you what Bristol is doing to protect 8 detainees from COVID-19? 9 A No. 10 Q So you never had any conversations with 11 him about COVID-19? 12 A No. Other than -- other than in 13 relation to the motivations to why they're being 14 released into the community, which is the COVID-19 15 release. That's the rationale for what apparently 16 the judges --

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 5 of 15 17 Q How do you communicate with ICE about 18 conditions in Bristol that might reduce your 19 capacity to hold detainees? 20 A The superintendent communicates with 21 ICE about the numbers. 22 Q So if the capacity of Bristol to 23 release the to hold detainees reduced, the 24 superintendent would have that conversation with
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 37
1 ICE, correct? 2 A If they had to be reduced yes. 3 Q And would you direct him in how that 4 conversation went or is that under his authority? 5 A I'm not sure what you mean by 6 "conversation" and "reduced." You're saying if 7 the population is reduced would he speak to ICE 8 about the number he would have to -9 Q If the capacity in Bristol to hold 10 detainees reduced, would he have a conversation 11 with ICE about that? 12 A Well, sure, he would have to tell them 13 we can't hold them. 14 Q And would you have a conversation with 15 ICE about that?

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 6 of 15 10 A No. He wouldn't need to in this case 11 with COVID-19. I'm paying very close attention to 12 what's going on in this case. So he -13 Q So he hasn't had -- so he hasn't had 14 those conversations with you? 15 A I don't recall having any with him. 16 Q But no one else -17 A There was no real sort of hey, we need 18 to have a meeting over the numbers because I can 19 see it. I'm very aware of it. 20 Q And no one else has had a conversation 21 about a reduction in capacity with you, correct? 22 A I'm sorry? 23 Q No one else -- no one else besides the 24 superintendent has had a conversation with you
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 44
1 about a reduction in capacity over the past three 2 months? 3 A Other than my conversations with ICE 4 when I was concerned about the judges releasing 5 people back into the community. 6 Q Have you ever communicated something to 7 ICE about a reduction in capacity? Outside of 8 this context, have you ever in your history as

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 7 of 15 9 sheriff communicated a reduction in capacity to 10 ICE? 11 A I don't recall. I was always looking 12 for more. 13 Q And if you want -- but if you wanted to 14 recruit, if you wanted to bring in more detainees 15 you would have that conversation with ICE, 16 correct? 17 A Of course. If I wanted to increase the 18 capacity, of course. 19 Q And that -- as you just said, that's 20 what you've been looking for, correct? 21 A That's what I what? 22 Q That's what you've been looking for? 23 You've been looking to bring in more detainees, 24 correct?

ROUGH DRAFT - THOMAS HODGSON 5-5-2020 45

1 A Whatever we can do to collaborate with

2 our partners within the confines of our standards,

3 we do in the interest of public safety.

4 Q If ICE had more detainees and sent them

5 to Bristol right now you would be interested in

6 accepting them, correct?

7

MR. SADY: Objection.

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 8 of 15 ROUGH DRAFT - THOMAS HODGSON 5-5-2020
82
1 Q Yes. 2 A No, I'm pretty good at -- I grew up 3 with a family of 13 kids so I'm pretty good at my 4 own communication. 5 Q All right. So I'm going to ask you, do 6 you think that the release of detainees from 7 Bristol County because of COVID-19 was necessary? 8 A We did not have any COVID-19 cases at 9 the time people were released. 10 Q At the beginning of this case you had 11 about 150 detainees in ICE; is that correct? 12 A I believe it was 148. 13 Q And you don't believe that it was 14 necessary to release any of those people, correct? 15 A I felt that we could manage the 16 population and much like we have with our county 17 inmates who were actually in closer proximity than 18 the detainees. 19 Q And in fact at that time Bristol could 20 have accepted more ICE detainees, correct? 21 A I don't know what the capacity would 22 have been at that time. 23 Q But it was unnecessary to release any 24 detainees, correct?

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 9 of 15 8 that the population at Bristol County should be 9 reduced? 10 A Issued a policy that they should be 11 reduced? 12 Q That there should be fewer detainees, 13 that some detainees should be released. 14 A No, I issued no policy like that. 15 Q And let's turn to paragraph 7. 16 A Okay. 17 Q At present, no detainee has tested 18 positive -- detainee or staff member never has 19 tested positive for COVID-19. Is that statement 20 still true as of this date? 21 A That's not true. We have one that has 22 tested positive. 23 Q One that -24 A Has no symptoms.
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 127
1 Q One -2 A He was sent out to the hospital. When 3 he came -- when he was there they took his 4 temperature, it was I think 99, and they did a 5 COVID test and said that it was positive. But he 6 had no symptoms. And he's back. Back with us.

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 10 of 15 7 Q So by one, you mean one detainee, 8 correct? 9 A That's correct. 10 Q And have any staff members tested 11 positive? 12 A Yes, we've had staff members that have 13 tested. 14 Q How many? 15 A I believe, don't hold me to the number, 16 it's somewhere around eight. 17 Q And what were their positions? 18 A Two nurses, I believe the rest were 19 correction officers. I believe. 20 Q Do you think that there are more staff 21 who are positive that you may not know about? 22 A That's speculative. I wouldn't know. 23 Q For the detainee that tested positive, 24 how long has that detainee been at Bristol?
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 128
1 A He's been with us, I think, since 2 November. 3 Q And what unit was he in? 4 A I don't -- I'm not sure. 5 Q Was he -- strike that.

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 11 of 15

6

Are there any people in the pretrial

7 wing that have tested positive?

8 A Pretrial meaning inmate?

9 Q Yes. In nonimmigration detention that

10 have tested positive.

11 A For pretrial?

12 Q Yes.

13 A Not to my knowledge.

14 Q And what about sentenced inmates?

15 A There's one sentenced inmate an

16 82-year-old that just recently tested positive.

17 He also has no symptoms.

18 Q So neither of the two people that --

19 neither of the -- neither the detainee or the

20 inmate who have tested positive had symptoms,

21 correct?

22 A That's correct. And they're here with

23 us.

24 Q And so you could be positive for a

ROUGH DRAFT - THOMAS HODGSON 5-5-2020 129

1 COVID-19 -2 A If I could just interrupt a minute. He 3 also was at the hospital being treated for a 4 colitis or some other kind of thing before he came

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 12 of 15 4 question?

5 Q Sure.

6

For the detainee that tested positive,

7 did Bristol County Sheriff's Office engage in

8 contacts tracing to determine how he might have

9 been infected?

10 A Yes. Yeah, that's all -- I'm sorry, I

11 focused on the officers but it would be the same

12 for the detainees. We would look at who were they

13 in close proximity to. Even with the other

14 detainees, we -- you know, who had any close

15 contact with them for any extended period of time,

16 we would be looking to do that.

17

Keep in mind you know, these questions

18 are really important because it really underscores

19 my whole point about, you know, our

20 responsibility. My responsibility is to be as

21 vigilant as we can to make sure no other detainees

22 get -- you know, contract the disease or my staff.

23 You know, that's a big, big, obligation for all of

24 us and we all recognize the importance of it.

ROUGH DRAFT - THOMAS HODGSON 5-5-2020 131

1

So we would absolutely monitor

2 everything we could to find out -- you know, to

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 13 of 15 3 prevent somebody from spreading it more if they 4 were in close contact with that person, make sure 5 we take the right CDC protocol steps. 6 Q So this detainee has been in Bristol 7 since November, correct? 8 A That's correct. 9 Q And so fair to say that he contracted 10 COVID-19 in Bristol County, correct? 11 A Likely. 12 Q And fair to say others that he has come 13 in contact with may have it, correct? 14 A That's provided that the test is 15 accurate. 16 Q Uh-huh. And fair to say that others 17 may have it as well, correct? 18 A No. That's not fair to say. 19 Q Okay. And he's -- he is not exhibiting 20 any symptoms, correct? 21 A He is not what? 22 Q He is not exhibiting symptoms, correct? 23 A That's correct. 24 Q And where is he currently housed?
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 132
1 A He's in -- I think he's in isolation

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 14 of 15 3 prevent somebody from spreading it more if they 4 were in close contact with that person, make sure 5 we take the right CDC protocol steps. 6 Q So this detainee has been in Bristol 7 since November, correct? 8 A That's correct. 9 Q And so fair to say that he contracted 10 COVID-19 in Bristol County, correct? 11 A Likely. 12 Q And fair to say others that he has come 13 in contact with may have it, correct? 14 A That's provided that the test is 15 accurate. 16 Q Uh-huh. And fair to say that others 17 may have it as well, correct? 18 A No. That's not fair to say. 19 Q Okay. And he's -- he is not exhibiting 20 any symptoms, correct? 21 A He is not what? 22 Q He is not exhibiting symptoms, correct? 23 A That's correct. 24 Q And where is he currently housed?
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 132
1 A He's in -- I think he's in isolation

Case 1:20-cv-10617-WGY Document 151-3 Filed 05/06/20 Page 15 of 15 2 right now. 3 Q Okay. And the inmate who also tested 4 positive, he's not exhibiting any symptoms, 5 correct? 6 A That's my understanding. 7 Q And so it is possible to have COVID-19 8 and not exhibit any symptoms, correct? 9 A I think we already went through this. 10 That's for everybody no matter where you are. 11 Q Right. And so there may be people in 12 Bristol that have COVID-19 but are not exhibiting 13 symptoms, correct? 14 A That's very possible. 15 Q And not everyone -- not every detainee 16 or inmate has been tested; is that correct? 17 A That's correct. But to your point, you 18 know, when we go into the grocery store I bet you 19 99 percent of those people weren't tested either 20 and nor should they be in DPH and CDC have 21 recommended against testing universally for 22 COVID-19 in the prisons. 23 Q I'm going to mark -24 A Pardon?
ROUGH DRAFT - THOMAS HODGSON 5-5-2020 133

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EXHIBIT D

Case 1:20-cv-10617-WGY Document 151-4 Filed 05/06/20 Page 2 of 62
Transcript of Steven Souza, Corporate Representative
Date: May 1, 2020 Case: Savino, et al. -v- Hodgson, et al.
Planet Depos Phone: 888.433.3767 Email:: transcripts@planetdepos.com www.planetdepos.com
WORLDWIDE COURT REPORTING & LITIGATION TECHNOLOGY

Case 1:20-cv-10617-WGY Document 151-4 Filed 05/06/20 Page 3 of 62

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF MASSACHUSETTS

3

- - - - - - - - - - - - - - - - - -x

4 MARIA ALEJANDRA CELIMEN SAVINO, : Case No.

JULIO CESAR MEDEIROS NEVES, and

5 all those similarly situated,

: 1:20-cv-10617-WGY

6

Petitioners-Plaintiffs,

:

7 v.

:

8 THOMAS HODGSON, Bristol County Sheriff in his Official
9 Capacity; STEVEN J. SOUZA, Superintendent Bristol County
10 House of Corrections in his Official Capacity; TODD
11 LYONS, Boston Field Office, Acting Director, Immigrations
12 and Customs Enforcement in his Official Capacity; CHAD F.
13 WOLF, Acting Secretary, Department of Homeland
14 Security, in his Official Capacity; MATTHEW T. ALBENCE,
15 Deputy Director and Senior Official Performing the Duties
16 of the Director for U.S. Immigration and Customs
17 Enforcement, in his Official Capacity; and U.S. IMMIGRATION
18 AND CUSTOMS ENFORCEMENT,

:

DEPOSITION OF

:

STEVEN SOUZA

: CORPORATE REPRESENTATIVE

:

CONDUCTED VIRTUALLY

:

Friday, May 1, 2020

:

7:07 a.m. PT

:

:

:

:

:

19

Respondents-Defendants.

:

20

- - - - - - - - - - - - - - - - - -x

21

22

Job No.: 297502

23

Pages: 1 - 346

24

Reported By: Charlotte Lacey, RPR, CSR No. 14224

Case 1:20-cv-10617-WGY Document 151-4 Filed 05/06/20 Page 4 of 62

Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

56

1 cells, are there sinks in those cells?

2

A. No.

3

Q. No. Okay. If not, how often are those

4 individuals permitted to go to the bathrooms to

5 use the sink?

6

A. They are dormitory-style doors, so they

7 can exit their cell at any time. There is no

8 restriction on them going to the bathroom, as well

9 as washing their hands. During the lockdown, when

10 there is a count being taken, there would be no

11 one allowed when the count is being taken, but

12 after that, they are allowed to go to the restroom

13 at any time.

14

Q. So aside from when the count is being

15 taken, they can go to the bathrooms and use the

16 sink at any time; is that correct?

17

A. That's correct.

18

Q. And they don't have to gain permission

19 during those times?

20

A. Correct.

21

Q. Okay. Has the ability for detainees to

22 wash their hands changed at all since the

23 beginning of this lawsuit?

24

A. I don't know what you mean by "the

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Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

68

1 codes is the only time that the correction

2 officers are not able to be a full 6 feet away

3 from each of the detainees?

4

A. Again, they have to make their rounds.

5 If there happens to be a detainee walking into the

6 bathroom and they may be near the correctional

7 officer, or when the correction staff are making

8 their security rounds, if a -- if a detainee or an

9 inmate are, you know, on their bunk, it may be

10 closer within the -- the 6 feet, but it's -- it's

11 not a prolonged time.

12

It's incidental, like passing through a

13 hallway or passing by, you know, a table that a

14 detainee may be sitting at, or opening a -- a -- a

15 door and the detainee's walking through the door.

16

Q. Right. So there are times at which

17 they'll, you know, pass through during their

18 normal workday when they might come within the

19 6 feet?

20

A. Yes.

21

Q. And that's unavoidable?

22

A. Correct.

23

Q. Okay. And are there any written

24 protocols to help the correction officers stay the

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Conducted on May 1, 2020

76

1 serving the meals into their food trays that they

2 may not be 6 feet apart, they have the PPEs on,

3 where they have the gloves, they have the masks,

4 they have the hairnets, or a baseball cap on is

5 what they have.

6

Q. And you mentioned the inmates in the

7 kitchen. Is the makeup of individuals going into

8 the kitchen each day different?

9

A. There's three shifts of inmates that go

10 into the kitchen, and they're all the same

11 inmates, but three separate shifts of inmates. So

12 we may have a total of, say, 40 inmates that work

13 in the kitchen during three specific shifts, so

14 two shifts, depending on how they work it with

15 what meals are being prepared.

16

Q. Okay. And while in the kitchen, each of

17 them is given a mask, a set of gloves, a hairnet,

18 and any other personal protective equipment?

19

A. I don't believe so.

20

Q. And is there any repercussion for not

21 wearing that protective equipment while in the

22 kitchen?

23

A. If they're not wearing the protective

24 equipment, then they potentially would be fired

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Conducted on May 1, 2020

81

1

A. I don't know specifically a date.

2

Q. Okay. Is it fair to say that the signs

3 have stayed fairly consistent over the last month

4 or so?

5

A. I would say pretty consistent.

6

Q. Okay. And just to be clear, we talked

7 about this a bit earlier. But there have not been

8 any steps taken to enforce the protocols, and what

9 I mean by that is no one's been reprimanded for

10 coming within 6 feet of another person; is that

11 correct?

12

A. That's correct.

13

Q. Okay. Moving back to Exhibit 29.

14

MR. BROWN: Can we get Exhibit 29 on the

15 screen, Miles?

16

AV TECHNICIAN: Yes. Sorry. One

17 second.

18

Q. No worries. And under the "Avoid close

19 contact" header, do you see where it says "Keeping

20 distance from others is especially important for

21 people who are at higher risk of getting very

22 sick"?

23

A. Yes.

24

Q. All right. What, if any, protocols

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Conducted on May 1, 2020

82

1 exist at Bristol to ensure detainees who have

2 existing medical conditions can keep distance --

3 can keep distance from the correction officers?

4

A. Anyone that would be an issue of being

5 very sick would be housed within medical.

6

As far as the individuals that are

7 within the housing units, where the detainees are

8 located and staff, basically, again, practicing

9 social distancing, making sure the staff are

10 wearing their masks, making sure the inmates and

11 detainees are wearing their masks, and avoiding

12 physical contact unless security purposes or

13 transportation purposes are necessary.

14

Q. So unless a detainee is in the medical

15 for immediate attention, then individuals who, for

16 example, have diabetes, is there a separate

17 protocol for making sure they can socially

18 distance?

19

A. No.

20

Q. The next header in Exhibit 29 is

21 entitled "Cover your mouth and nose with a cloth

22 face cover when around others." Do you see that?

23

A. Yes.

24

Q. When did you first learn about the CDC's

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Conducted on May 1, 2020

85

1

Q. And how many have been reprimanded for

2 not wearing their masks?

3

A. I would say maybe half a dozen or so.

4

Q. And take me through those. What happens

5 when someone's reprimanded for not wearing their

6 mask?

7

A. Basically they would be issued either an

8 informal D report or a formal D report and not

9 allowed to come out of their cell, except for

10 bathroom purposes. They would be fed within their

11 cell. They would not be allowed to go out to

12 recreate in the day room area or the outside rec

13 yard.

14

Q. And how long would that last for?

15

A. It could be a day, it could be two days,

16 depending on the severity of the infraction. If

17 it was just, you know, "I'm not wearing it. I

18 don't come out of my cell, fine," versus becoming

19 belligerent and/or assaultive to staff would be

20 different determination on length of time.

21

Q. And you said a dozen. Does that

22 represent all of the times in which detainees were

23 not wearing their masks outside of their bunks?

24

A. I said about a half a dozen or so,

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1

Q. How many masks do you have in storage?

2

A. Probably 2,000.

3

Q. Probably 2,000. And which types of

4 masks are those?

5

A. I have KN95s. I have N95s. I have

6 surgical masks. I have different -- couple of

7 different types of surgical masks, actually.

8

Q. And about what percentage of the

9 correction officers are wearing the surgical

10 masks?

11

A. I don't know because there's three

12 shifts, and I'm not there for all three shifts to

13 know.

14

Q. Okay. And so you wouldn't know what

15 percentage are wearing the N95 or the KN95 as

16 well?

17

A. Correct.

18

Q. And what is EMA?

19

A. MEMA.

20

Q. NEMA. Thank you.

21

A. MEMA with an "M." M-E-M-A.

22

Q. And what does MEMA stand for?

23

A. Massachusetts Emergency Management

24 Association.

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1

MR. KANWIT: Good.

2

Q. Does Bristol provide detainees with

3 masks?

4

A. Yes.

5

Q. How many masks per detainee?

6

A. Each detainee and inmate were issued one

7 cloth mask, which is washable, and there's a

8 protocol in place for washing them, and if there

9 is a need for additional masks, we will issue out

10 a surgical mask.

11

Q. And you say "if there's a need for an

12 additional mask," and that's if the particular

13 inmate requests that mask?

14

A. If the individual requests it, if there

15 is a specific need that theirs happens to be in

16 the wash and they're going to the outside rec yard

17 or they're leaving their cell or theirs broke, we

18 would issue them a new mask if theirs broke, and

19 we would have alternative surgical masks available

20 if needed.

21

Q. Okay. Let's turn to Exhibit 35.

22

AV TECHNICIAN: Please stand by.

23

Q. Mr. Souza, do you recognize this

24 document?

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1

A. That, I -- I don't have exact numbers on

2 those.

3

Q. Okay. And respirators?

4

A. We do not carry respirators.

5

Q. Eye protection?

6

A. We have probably over 150, maybe 200

7 goggles, and then there are some face shields that

8 we also have, and we do have some that are on

9 order as needed.

10

Q. Okay. And do you know exactly how many

11 pairs of those you have?

12

A. Not off the top of my head 'cause

13 medical also has their own supply.

14

Q. And who is that eye protection being

15 supplied to?

16

A. The eye protection would be supplied to

17 any staff person that needs it based on where they

18 were working or what they were -- or who they were

19 working with.

20

Q. Okay. But not to the detainees?

21

A. No.

22

Q. Okay. And you mentioned earlier you had

23 some gloves.

24

Does each -- does each detainee receive

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1 gloves?

2

A. No. They would utilize gloves for --

3 for when they're doing cleaning or passing out

4 meals or anything, but they're not issued gloves

5 as a general.

6

Q. So they would have to request gloves for

7 each of those jobs?

8

A. Yes.

9

Q. Okay. And what about a supply of

10 disposable gowns or coveralls?

11

A. The sheriff's office has some, and the

12 medical department also has some. I believe we

13 have about 200 currently. There are more on

14 order, and I'm not sure what medical has for their

15 supply.

16

Q. Okay. And do you know how many swabs

17 medical currently has?

18

A. I do not.

19

Q. Okay. Turning to Exhibit 30. If we go

20 to page 2, there's a section titled "What should I

21 do if I might have been exposed, if I feel sick,

22 or have confirmed COVID-19?"

23

Mr. Souza, do you see that section?

24

A. Yes, I do.

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1 the ones that are monitoring to make sure that at

2 least seven days have passed since the date of the

3 first positive test?

4

A. Yes.

5

Q. Okay. And in -- in -- in the case of

6 increased need for testing, do you know how many

7 total single cells there are that could isolate

8 individuals?

9

A. We can make adjustments to those

10 specific housing units that were documented in the

11 -- in that other document. We originally start

12 with the four cells in medical, if they're

13 available. We then go to our EE unit, which has

14 16, and then we would progress from there.

15

Q. Okay. What protocols are in place for

16 testing the new arrivals?

17

A. Only if they're symptomatic, they would

18 be tested. If they're not symptomatic, they would

19 be isolated in a specific housing unit for at

20 least 14 days before we introduce them into the

21 general population.

22

Q. Okay. So new arrivals who are not

23 symptomatic, are not tested on arrival; that's

24 correct?

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1

A. Correct.

2

Q. How many new arrivals have been tested?

3

A. I have no idea.

4

Q. Okay. And so you wouldn't know if any

5 of those tests have been positive?

6

A. No.

7

Q. Okay. Are new arrivals -- and you said

8 new arrivals are being quarantined; is that

9 correct?

10

A. They're being isolated.

11

Q. Isolated. And so where -- when each of

12 those are isolate -- when each of those

13 individuals are isolated, who do they come in

14 contact with?

15

A. As with the production of documents,

16 there were two -- two housing units that were

17 originally designed for new commitments. Females

18 are in one particular unit. The males were

19 originally in GC, and now we have turned it over

20 to our FB unit, and they would be placed into

21 single cells within that FB unit.

22

Q. What does the "FB unit" stand for?

23

A. FB is just the acronym for that

24 particular housing unit.

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1 could be once every two to three weeks, depending

2 on what else I'm working on. As I expressed, I

3 have a vast -- I oversee a vast number of

4 departments and divisions.

5

Q. Understood. When was the last time you

6 were at Unit A?

7

A. I believe it was probably about maybe

8 three weeks ago, four weeks ago.

9

Q. Okay. So three or four weeks ago when

10 you were there, how long were you there for?

11

A. I was probably there for an hour or

12 more.

13

Q. Okay. How many individuals are

14 currently held in Unit A?

15

A. I believe there are 11. That's off the

16 top of my head. I mean, we have got many units,

17 so just off the top of my head, I believe 11.

18

Q. 11 units. And of those, how many are

19 inmates?

20

A. In -- in A?

21

Q. In A.

22

A. No inmates. Only detainees.

23

Q. No -- okay. And so of the

24 immigration -- of the 11, all of them are

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1 Kanwit.

2

Q. From Attorney Kanwit. Okay. The

3 drawing on the first page is titled -- can we

4 scroll up to the first page of this document.

5

The drawing on the first page is titled

6 "ICE Unit A, as-is." What is the drawing on the

7 first page intended to represent?

8

A. The rows of bunks, and the Xs, I

9 believe, are representative of how many

10 individuals are assigned to the set of bunk beds.

11

Q. Okay. So just to make sure I understand

12 this, the white squares are intended to represent

13 the bunks?

14

MR. KANWIT: Objection. He didn't

15 create the document, so you shouldn't be asking

16 about his intent.

17

Q. Is it your understanding, looking at

18 this document, that the white squares indicate the

19 bunks?

20

A. Yes, I believe so.

21

Q. And then the gray squares indicate the

22 aisles?

23

A. Yes, where it's labeled "aisles."

24

Q. Yep. And this actually -- accurately

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1 you see that?

2

A. Yes.

3

Q. And that individual, if they had to get

4 up in the middle of the night and go to the

5 restroom, they would have to pass by another

6 individual in order to do so; is that correct?

7

A. Correct.

8

Q. And they'd come within 6 feet of that

9 other individual?

10

A. Correct.

11

Q. Okay. How often are you in Unit B?

12

A. About the same time that I would be in

13 Unit A.

14

Q. Okay. When was the last time you were

15 in Unit B?

16

A. About the same time as Unit A. I

17 usually go to one building and -- and go to all

18 the units within that one particular building.

19

Q. Okay. And last time you were in Unit B,

20 how long did you spend there?

21

A. Probably an hour or more.

22

Q. How many individuals are currently

23 housed in Unit B?

24

A. I believe there's 26, but I would have

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1 to look at the exact count. But I believe there

2 was 26.

3

Q. So as of today, you believe there are 26

4 individuals?

5

A. I believe so.

6

Q. And do you know how many of those are

7 inmates?

8

A. There are no inmates in the ICE

9 building.

10

Q. You cut out for me. Sorry. So there

11 are no inmates; am I correct?

12

A. There are no inmates in ICE A or ICE B,

13 strictly detainees.

14

Q. So that would be 26 detainees. Why are

15 there different numbers between the individuals in

16 Unit A and Unit B?

17

A. Based off of their classification.

18

Q. And walk me through that. How does that

19 classification impact where they're housed?

20

A. The classification is submitted through

21 immigration. Level 1s and level 2s can be housed

22 together. Level 2 and level 3 can be housed

23 together. But a level 3 and a level 1 cannot be

24 housed together.

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1

Q. And there's no cells in Unit B, correct?

2

A. That's correct.

3

Q. Can we scroll to the third page of this

4 document, and the third page is titled "Unit B

5 as-is."

6

A. Yep.

7

Q. Do you have any reason to believe this

8 is not an accurate representation of the sleeping

9 arrangements in Unit B as of April 14, 2020?

10

A. I have no reason to believe that it's

11 not.

12

Q. Okay. And looking at this, you don't

13 know where the entrances or exits to Unit B are?

14

A. Correct.

15

Q. Okay. So the image here shows five rows

16 of beds, correct?

17

A. Correct.

18

Q. And there are 33 beds total?

19

A. Correct.

20

Q. 33 bunks total?

21

A. Excuse me?

22

Q. There are 33 bunks total?

23

A. 33 double bunks.

24

Q. Right. And in this image, 20 were used?

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1

A. I don't know what the count was on

2 there.

3

Q. Okay. But you -- as of today, you

4 understand 26 individuals to be sleeping here?

5

A. Correct.

6

Q. And so the same thing here in Unit B,

7 when sharing a bunk, there's a 3-foot distance

8 between bodies when each person's lying directly

9 flat?

10

A. Correct.

11

Q. And so less of a distance if one of them

12 sits up in the night?

13

A. Correct.

14

Q. As you understand it, have the

15 individuals in Unit B been rearranged since

16 April 14th?

17

A. I believe so, because of the -- as the

18 count reduces or changes, they make adjustments to

19 the --

20 the -- the sleeping arrangements.

21

Q. Okay. Moving on to the -- the next page

22 of this exhibit, and you see this is titled "Unit

23 B Ideal"?

24

A. Yes.

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1 document are accurate representations of how

2 people sleep?

3

A. I have no idea.

4

Q. Okay. How often are you at the EB unit?

5

A. About the same time as the going to the

6 ICE -- ICE A or ICE B.

7

Q. And do you know when the last time is

8 you were in the EB unit?

9

A. Probably about four weeks ago.

10

Q. About four weeks ago.

11

And the EB unit doesn't stand for

12 anything, "EB" is just the acronym that's used?

13

A. Just acronyms.

14

Q. Okay. And last time you were there, do

15 you remember about how long you were there for?

16

A. Maybe half hour.

17

Q. How many ICE detainees are in the EB

18 unit?

19

A. Today, I believe there were five.

20

Q. You believe there were five.

21

And how many criminal inmates?

22

A. Maybe six. Five or six.

23

Q. Okay. So about 11 individuals who are

24 held in the EB unit?

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1 shower and individual standing in another shower.

2

A. There -- there's -- there's walls, and

3 there's complete -- it's -- it's complete isolated

4 showers. There's a door to walk into, and then

5 it's a shower, and there's four walls within that

6 shower. And then next door next to it is -- is,

7 again, four walls. So they're complete isolated

8 showers.

9

Q. Okay. They're completely isolated

10 showers.

11

And how about the toilets, are those

12 completely isolated, or is there sort of a vent on

13 top of the separator?

14

A. There's -- there's stalls.

15

Q. There's stalls. And the shower rooms,

16 are they ventilated?

17

A. Yes, they are.

18

Q. They are. When was the last -- oh.

19

How often are you in the 2 East unit?

20

A. Again, roughly around the same time

21 frame.

22

Q. And that's the same for the last time

23 that you were at the 2 East unit?

24

A. Probably four to five weeks at the

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1 2 East unit.

2

Q. And how long were you there

3 approximately the last time you were there?

4

A. I was there probably for about

5 45 minutes maybe.

6

Q. About 45 minutes?

7

A. Yes.

8

Q. And in your declaration, you represented

9 that there were 54 males housed in this unit.

10

Do you know if that's still the case?

11

A. I believe there's 45 currently.

12

Q. 45 currently.

13

And what's the cause in that reduction?

14

A. Releases through ICE and/or releases

15 through the pretrial inmates.

16

Q. And of the 45, how many are detainees?

17

A. I believe there are 36, maybe, that are

18 detainees. 35, 36 maybe.

19

Q. Okay. And the others are inmates,

20 correct?

21

A. Correct.

22

Q. Of the 36, they're divided into eight

23 cells; is that correct?

24

A. There's a total of 13 cells in that

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1 unit. I believe they are divided into -- I

2 believe there's eight cells. I would have to look

3 at my declaration to be specific.

4

Q. And -- but those cells would have about

5 four to five individuals each?

6

A. I believe there's -- right now, there's

7 a maximum of five, but generally four and five are

8 currently in there.

9

Q. Generally four or five. Okay. And each

10 cell contains four double-bunk beds; is that

11 correct?

12

A. Yes, correct.

13

Q. Okay. So each of the cells is

14 identical?

15

A. Yes.

16

Q. So that would mean that currently, at

17 least one person in some of the cells are sharing

18 a bunk, right?

19

A. Yes.

20

Q. Okay. And those bunks are the same as

21 the ones in Unit A and B; is that correct? The

22 same type of bunk bed?

23

A. Yeah, same type of bunk bed, correct.

24

Q. Okay. So for anyone sharing a bunk,

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1 you -- how you got that measurement and where the

2 measurement is coming from.

3

A. Okay. So if the -- if the bunk bed

4 itself is 6 feet long or 7 feet in length, if the

5 detainee's head is on the left-hand side of the

6 bunk, the next detainee's head would be on the

7 complete opposite side, so it would be -- the head

8 would be on one location, the feet would be facing

9 the another location. So that there's that

10 distance.

11

Q. And that's between bunks on the -- on

12 the same side of the wall, am I understanding this

13 correctly?

14

A. Correct.

15

Q. Okay. And so -- and you're measuring,

16 again, between the individuals' heads, not

17 necessarily between, say, the head and the feet of

18 the next person?

19

A. Correct.

20

Q. For those individuals sharing a bunk,

21 you represent that the head of one detainee is

22 over the feet of the other detainee. No

23 detainee's head is closer to another detainee's

24 head that 6.7 feet. Is that still correct?

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1

A. Yes.

2

Q. And so in those instances, the bodies of

3 individuals sharing the bunk are actually 3 feet

4 apart; is that right?

5

A. What do you mean by "3 feet apart"?

6

Q. So for -- I understand that an

7 individual sharing a bunk that will be lying in a

8 different direction than the other individual

9 sharing that bunk and that, therefore, you've

10 represented that there will be a distance between

11 the detainees' heads, correct? That's the 6.7

12 feet measures between the heads?

13

A. I don't know the exact measurement, but,

14 yes, it would be between the heads.

15

Q. Okay. And for those individuals sharing

16 the bunk, if we are actually measuring just, say,

17 between the feet of the -- of one detainee and

18 head of another detainee, that distance is 3 feet,

19 correct?

20

A. No, because if the bunk is 6 feet or

21 7 feet long, the detainee's head on the top would

22 be on one end, and the detainee's head on the

23 bottom bunk would be the opposite direction.

24

Q. Correct. But if we're not just

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1 measuring between the heads and, say, we measure

2 between the foot of one detainee and the head of

3 the other, that is less than 6 feet, correct?

4

A. Up and down, it would be, yes.

5

Q. Up and down, it would be. And, again,

6 the measures in your declaration are correct when

7 the detainees are asleep laying down; that's

8 correct?

9

A. Yes.

10

Q. And so that measurement will change as

11 they get up in the middle of the night?

12

A. Correct.

13

Q. Why is it that your representation in

14 your declaration measured just between the heads

15 of individuals?

16

A. Just based off of how we set them up to

17 be head to toe and toe to head. And then the

18 measurements, again, I had somebody measure the

19 length of the bunks, the height of the bunks, but

20 that's what was recorded.

21

Q. Understood. And so for the 2 East unit,

22 how much time do each of the detainees spend per

23 day in their cells?

24

A. It varies. Some stay longer in their

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1 stalls, there's a set of urinals, and there's a

2 set of sinks.

3

Q. So take Unit A, in that bathroom, how

4 many sinks are they -- are there?

5

A. I don't know specifically. It would be

6 in my declaration as to exactly how many are

7 located in that area.

8

Q. Okay. So in your declaration, if you

9 represented that there were eight sinks in that

10 bathroom, does that sound correct?

11

A. Potentially, yes.

12

Q. And for the showers in Units A and B,

13 would you also rely on the number in your

14 declaration, which is six?

15

A. That's correct.

16

Q. Okay. And for urinals, there were

17 three?

18

A. Correct.

19

Q. Okay. And you represent -- and you

20 represented that there were six toilets in Units A

21 and B in your declaration. Is that still the

22 case?

23

A. Yes.

24

Q. How far apart is each sink in each of

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1 those bathrooms?

2

A. I don't know off the top of my head.

3

Q. Okay. And is the shower -- are the

4 showers the same setup that we've talked about for

5 the unit previously?

6

A. It's a little different as they don't

7 have a solid door. But there are three walls.

8 And then the entrance, which is -- has a shower

9 curtain on it, but then each one is individual

10 shower stalls. It's non-communal.

11

Q. Okay. And there's the -- the curtain is

12 what separates one individual from the next?

13

A. No. It separates you from the outside

14 of the shower to step into the shower.

15

Q. I see. So you walk into the curtain,

16 and then there are walls on either side of you.

17

A. Correct.

18

Q. And do those walls go all the way up to

19 the ceiling?

20

A. Yes, they do.

21

Q. Okay. And how far apart are the

22 different urinals?

23

A. I don't know the exact measurement.

24

Q. And what about the toilets?

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1

A. They're in stalls. I don't know what

2 the exact measurements are.

3

Q. Same stalls that have the partial

4 divider with the ventilation at the top?

5

A. Yes, I believe so.

6

Q. And there's no strict number on the

7 amount of people who can use each bathroom at any

8 one time, correct?

9

A. Again, we try to limit it with the

10 social distancing and with the postings that are

11 up, but, again, there could be someone that's in

12 the shower and then go over to the bathroom side.

13 So we try to limit as much as possible, but, you

14 know we don't want to get into not allowing them

15 to utilize the facilities either.

16

Q. And so it's a common occurrence for each

17 shower to be used at the same time, correct?

18

A. Not each shower, but individual showers,

19 yes.

20

Q. But for all other showers to be used at

21 the same time?

22

A. That's a possibility, yes.

23

Q. And same thing for the sinks?

24

A. It could be.

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1

Q. And for the toilets?

2

A. It's possible.

3

Q. How frequently are detainees given soap

4 and shampoo for showering purposes?

5

A. They can purchase from canteen weekly.

6 They also -- the -- anybody that's indigent would

7 be given weekly indigent kits which would give

8 them a bottle of three-in-one, which is soap,

9 shower, body wash. And then there's also the soap

10 dispensers on the wall where the sinks are.

11

Q. And so separate and apart from meeting

12 the indigency requirements, you would have to

13 purchase your shampoo; is that correct?

14

A. Correct.

15

Q. Okay. And you represented earlier that

16 the soap in the communal area is replaced whenever

17 that is empty?

18

A. That's correct.

19

Q. And do you know how much of a supply of

20 that soap you have on hand?

21

A. I'm told that we have enough supply of

22 hand soap.

23

Q. And that, to your knowledge, has never

24 been watered down?

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1

A. That's correct.

2

Q. And there are no professional cleaners

3 that come into the bathrooms in Unit A and B?

4

A. No.

5

Q. So it's the detainee and staff

6 workforces we talked about earlier that would be

7 cleaning those units.

8

A. That is correct.

9

Q. And are they given personal protective

10 equipment when they're cleaning?

11

A. They are given --

12

MR. KANWIT: Objection; asked and

13 answered. We've been there through this.

14

Q. You can answer the question.

15

A. They're given gloves. And if they need

16 anything further, they will be given the items

17 needed.

18

Q. Can you describe the process by which

19 food is delivered to Bristol? Actually, delivered

20 to the facility to the kitchens?

21

A. As I stated in the declaration,

22 they're -- they come through delivery trucks.

23 They are -- the items are dropped off at our

24 shipping and intake area or the loading dock for

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1

Q. And you submitted this and signed it on

2 the 23rd of April 2020?

3

A. Whatever the date that's on there.

4

Q. The date at the bottom, can you take a

5 look at that, and let me know if that's the 23rd

6 of April?

7

A. Yes.

8

Q. You present in this declaration that all

9 meals are prepared in two shifts; is that correct?

10

A. Correct.

11

Q. The first is comprised of about 20

12 individuals plus a correction officer who

13 oversees; is that correct?

14

A. That's correct.

15

Q. And the second, comprised of about 13 to

16 15 detainees, two staff members, and a corrections

17 officer to oversee; is that correct?

18

A. Not detainees. They would be sentenced

19 inmates.

20

Q. Those are -- so the second shift is --

21 those would be sentenced inmates.

22

A. All of the kitchen workers are sentenced

23 inmates. We don't have detainees or pretrial

24 inmates working in the kitchen.

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1

A. They are -- they're called up to the

2 meal cart practicing social distancing to collect

3 their tray.

4

Q. And when you said "practicing social

5 distancing," what do you mean by that?

6

A. I mean that I don't have everybody right

7 in a row, that we have people -- we call so many

8 people up distanced apart to receive their tray.

9 Then they go and sit at a table or take it back to

10 their cell or bunk.

11

Q. And which individual is actually handing

12 off their tray to them?

13

A. It could be a staff person, or it could

14 be a volunteer worker.

15

Q. Okay. And they're less than 6 feet from

16 that person when receiving their meal, correct?

17

A. A hand's distance away.

18

Q. Oh, you cut out from me then -- from

19 there.

20

A. Arm's length to hand out the tray.

21

Q. Arm's length to hand out the tray,

22 correct?

23

A. Right. Arm's length to arm's length to

24 hand out a tray.

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1

Q. And this process is repeated three times

2 a day for breakfast, lunch, and dinner?

3

A. That's correct.

4

Q. Detainees can choose to eat their meals

5 in their bunk or at their table; is that correct?

6

A. That's correct. We normally have them

7 stay at the tables to eat, but to create social

8 distancing and not have everybody in one location,

9 we've allowed them to either take it back to their

10 cell to eat on their bunk or at the desk, if they

11 happen to have a cell. Or if they're in the ICE

12 building and it's just bunk beds, they're able to

13 sit on their bunk and eat it, or they can eat at

14 the table in shifts.

15

Q. Okay. And it's their choice as to which

16 of those they do?

17

A. That's correct.

18

Q. Are detainees provided sanitary wipes to

19 clean the containers once they're handed their

20 meals?

21

A. I'm sorry. I missed that.

22

Q. No worries.

23

Are detainees provided sanitary wipes

24 ever to clean the containers once they're handed

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1 their meals?

2

A. No.

3

Q. Because as we talked about earlier,

4 those are not available, correct?

5

A. Those wipes are for staff to clean the

6 control areas and the computers and so forth.

7

Q. Understood. Your declaration provides

8 that once meals are complete, dishes are returned

9 to the kitchen for cleaning and sanitizing.

10

Who does that cleaning and sanitizing?

11

A. The inmate kitchen workers.

12

Q. And the products they use are the

13 products we talked about earlier?

14

A. They're specific cleaning materials with

15 the dishwasher and within the scullery area where

16 the -- all the carts go back to, and all the trays

17 are cleaned through the dishwasher, and they're

18 dried, and then the carts are all wiped down with

19 the materials that we discussed earlier.

20

Q. Okay. And then -- and then the --

21 sorry. The first part of that statement?

22

I understand from the dishwasher on, but

23 what products are used between pickup of the

24 containers to reaching the dishwasher?

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1

A. Basically we're all following the CDC

2 and DPH guidelines. Each facility runs

3 differently. Each county runs differently based

4 off of their types of facilities, their population

5 of their facility, their layout of their facility.

6

Q. What's the factual basis for your

7 statement that maximum steps have been taken to

8 minimize the risk of a COVID-19 infection and any

9 spread?

10

A. I'm sorry. I missed the first part of

11 that question. You cut out.

12

Q. What is the factual basis for your

13 statement that maximum steps have been taken to

14 minimize the risk of a COVID-19 infection and any

15 spread?

16

A. Basically by following the guidelines

17 that are set up and following our procedures that

18 we put together for isolation and containment and

19 also for social distancing and educating the

20 detainees and the staff and the inmate relative to

21 social distancing.

22

Q. What do you mean by maximum steps?

23

A. The ability of what we have as of this

24 date. As we know, it's a fluid situation and

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1 things change, sometimes daily, so that the steps

2 were taken, and if there's more that need to come,

3 then we take those as well.

4

Q. Bristol does not think anything else

5 could be done to minimize the risk of a COVID-19

6 infection, correct?

7

A. I did not hear you.

8

Q. Bristol does not think anything else

9 could be done to minimize the risk of a COVID-19

10 infection, correct?

11

MR. KANWIT: Objection.

12

Q. You can answer.

13

A. I believe we're doing everything that we

14 possibly can.

15

Q. Are there any additional steps that you

16 could take at this point to further reduce the

17 risk that detainees may be exposed to COVID-19?

18

A. I believe we're doing everything that we

19 possibly can.

20

Q. So, in your opinion, there's nothing

21 further that can be done at Bristol in order to

22 secure the safety of detainees and staff in the

23 civil immigration units?

24

MR. KANWIT: Objection.

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1

A. If changes come forward through CDC and

2 DPH guidelines or on recommendations from the

3 medical vendor, then we would update those as

4 needed.

5

Q. At any point since March 1st, 2020, have

6 you made any recommendations to anyone at Bristol

7 as to steps that should be taken to get better

8 protection for detainees?

9

A. I'm not following what your question is.

10

Q. Yeah, let me rephrase that. That was a

11 little confusing.

12

At any point since March 1st, 2020, have

13 you made any recommendations for what should be

14 done with regard to COVID-19 that weren't

15 followed?

16

A. No.

17

MR. KANWIT: Objection as to time frame.

18

Q. You can answer.

19

A. No.

20

Q. Bristol did not consult with any outside

21 public health experts regarding best practices for

22 dealing with COVID-19 prior to this litigation,

23 correct?

24

A. No.

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1

Q. Bristol did not take any steps to

2 evaluate detainees for release prior to this

3 litigation, correct?

4

A. No.

5

Q. Bristol did not consider alternatives to

6 detention for detainees prior to this litigation,

7 correct?

8

A. Correct.

9

MS. CURTIS: If we have Miles back, can

10 we get Exhibit 48.

11

AV TECHNICIAN: Of course. One second.

12

MR. KANWIT: While he's pulling that up,

13 Annaleigh, your question was about Bristol. And

14 the definition given earlier by counsel, Bristol

15 was Bristol County House of Corrections. I just

16 want to be clear. We don't mean to ask did ICE

17 consider any steps to release detainees.

18

MS. CURTIS: I'm asking about Bristol;

19 that's correct.

20

MR. KANWIT: Thank you.

21

Q. Okay. I will represent to you that

22 Exhibit 48 is a PDF of the ICE web page on ICE

23 guidance on COVID-19 that was saved yesterday.

24

Have you read the ICE guidance on

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1

Q. The last sentence in that paragraph says

2 that ICE's detained population has dropped by more

3 than 4,000 individuals since March 1st, 2020, with

4 a more than 60 percent decrease in book-ins when

5 compared to this time last year, correct?

6

A. Yes, that's what it says.

7

Q. Is it fair to say that ICE is taking

8 steps to reduce the detained population?

9

MR. KANWIT: Objection.

10

A. I would guess that's what ICE is doing.

11 I'm not sure what they're doing or why they're

12 doing it.

13

Q. Bristol didn't communicate with ICE

14 about evaluating detainees for release prior to

15 this litigation, correct?

16

A. Correct.

17

Q. Bristol hasn't communicated with ICE

18 about evaluating detainees for release since this

19 litigation began, correct?

20

A. Correct.

21

Q. Are you aware of anyone at Bristol who

22 ICE voluntarily released due to COVID-19?

23

A. Could you repeat your question.

24

Q. Are you aware of anyone at Bristol who

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1

Q. You have not contacted ICE to discuss

2 the impact of dormitory-style rooms on

3 transmission of COVID-19, correct?

4

A. Correct.

5

Q. Did you receive any binding guidance

6 from ICE regarding your housing of ICE detainees?

7

A. What do you mean by "binding"?

8

Q. Have you received any guidance from ICE

9 that you were required to follow regarding housing

10 of detainees because of COVID-19?

11

A. No.

12

Q. Did ICE ever provide guidance to Bristol

13 on screening ICE detainees for COVID-19?

14

A. Not that I'm aware of.

15

Q. Has ICE asked Bristol to provide ICE

16 with a list of ICE detainees who have illnesses

17 that put them at higher risk of complications if

18 they contract COVID-19?

19

A. They may have. If they did, it would

20 have been probably directly to the medical vendor.

21

Q. And the medical vendor is CPS; is that

22 right?

23

A. That's correct.

24

Q. And you're not aware if ICE has

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1 contacted CPS about illnesses by ICE detainees?

2

A. Not that I'm aware of.

3

Q. How often do you communicate with ICE

4 officers?

5

A. It varies depending on what the

6 circumstances are. I -- I have a director of

7 immigration that deals directly with ICE on a

8 daily basis.

9

Q. And what's that individual's name?

10

A. Liunetty Couto.

11

Q. And what are her job responsibilities?

12

A. She -- she coordinates our immigration

13 detainee program. She meets with detainees. She

14 processes them. She does caseworker duties with

15 them. She works with ICE on releases and on new

16 commitments and what our bed space availability

17 is.

18

Q. And do you know if she has discussed any

19 ICE detainees with ICE -- strike that.

20

Do you know if Ms. Couto has had any

21 conversations with ICE regarding the health status

22 of any ICE detainees?

23

A. I don't know.

24

Q. How often do ICE officers visit Bristol?

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1

Q. I guess let me rephrase it in a little

2 bit of a different way.

3

Are you aware of any guidance from ICE

4 to detention facilities in general about COVID-19?

5

A. Yes. They would send us -- and, like I

6 said, I believe they were in the production of

7 documents.

8

Q. Okay. Now, at the beginning of the

9 litigation, is it correct that there were 140 ICE

10 detainees housed at Bristol?

11

A. I know there was 140. I don't know if

12 it was 148 or just 140, but it was around that

13 number.

14

Q. And did you believe as of March 27th

15 that 140 detainees could be housed safely at

16 Bristol?

17

A. I believe by us following the CDC and

18 DPH guidelines, as well as putting into practice

19 in -- procedures in place, that yes.

20

Q. And as of today, do you still believe

21 that Bristol can safely house 140 ICE detainees?

22

A. Yes.

23

Q. Do you have in mind a number of

24 detainees that Bristol could safely house during

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1 this pandemic?

2

A. No.

3

Q. But it's at least 140; is that fair?

4

A. Yeah.

5

Q. Thinking about the ICE detainees who

6 have been released since March 27th, if you could

7 re-detain those individuals, would you do so?

8

A. I don't control who we can detain from

9 ICE. That's ICE's decision, so I don't think

10 it's -- I could fairly answer that question.

11

Q. Is it fair to say you would have no

12 objection to re-detaining them if ICE requested

13 it?

14

A. I would have no objection to detaining

15 anyone that was submitted -- committed by the

16 courts or from immigration.

17

MS. CURTIS: Okay, Miles. If we could

18 pull back up that document, which was...

19

AV TECHNICIAN: 48?

20

MS. CURTIS: 48.

21

AV TECHNICIAN: Yes.

22

MS. CURTIS: Thank you.

23

And if we can go to page 5. And scroll

24 down a bit once we get to page 5. Yeah. If we

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1 have no date written under self-quarantine were

2 still quarantined?

3

A. They were self- -- they were quarantined

4 due to a family member, not for symptoms that they

5 had.

6

Q. Okay. But I just -- to be clear, those

7 employees were still quarantining; is that right?

8

A. That's correct. If -- if you -- the

9 title at the top of it tells -- explains that.

10 "Quarantine due to family or household member

11 started, Quarantine for a family or household

12 member ended."

13

Q. Okay. So those individuals were not

14 working during their quarantine period as listed

15 under the "family household member" column; is

16 that right?

17

A. Correct.

18

Q. And -- I'm sorry -- did you say when you

19 first started collecting this information?

20

A. We started collecting it shortly after

21 the first -- first person that quarantined. I

22 don't have a specific date.

23

Q. But that would be whatever the earliest

24 date is listed on this spreadsheet?

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1

A. Yeah, probably.

2

Q. So probably around mid-March, does that

3 seem correct?

4

A. Yeah, around there.

5

Q. So from mid-March until April 28th,

6 there were a few dozen employees who were

7 self-quarantined for some period of time; is that

8 right?

9

A. Correct.

10

Q. How many of those individuals were

11 tested prior to returning to work to determine if

12 they were negative for COVID-19?

13

A. They were cleared by their doctor. I

14 don't know if they were tested or not.

15

Q. So they may have returned to work just

16 following the quarantine period; is that right?

17

A. Once their -- once their PCP or medical

18 professional determined that they can return to

19 work, that note was submitted, reviewed by our ADS

20 of employee health, and then a determination was

21 made that they could return to work.

22

Q. And for those individuals who are

23 quarantined because of a family or household

24 member, how does Bristol determine whether an

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1 the test was reported negative, and then she would

2 put a specific date in that.

3

Q. And "date positive" means the date they

4 received a positive from their test?

5

A. Yep.

6

Q. Date returned to work means the date

7 they returned to work, I presume?

8

A. That would be the date that they were

9 cleared to return to work, correct.

10

Q. And by my count, there are 49 rows with

11 data here; is that accurate?

12

A. Whatever's on the form. I don't know

13 what the exact numbers are.

14

Q. And is it correct that as of the date of

15 this document, April 28th, 25 Bristol County

16 Sheriff's Office employees had been tested for

17 COVID-19?

18

A. I don't know. I would have to count. I

19 don't know the exact number.

20

Q. But it's whatever number is on this

21 sheet?

22

A. That's correct.

23

Q. And 24 Bristol County Sheriff's

24 Office employees had self-quarantined or -- strike

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1 information from to tweet it to see if it's part

2 of that or not.

3

Q. When was the last time the spreadsheet

4 was updated?

5

A. I believe it was updated on the -- maybe

6 on the 30th. I'm not a hundred percent positive.

7 I'd have to look at my e-mails.

8

Q. And, as you sit here today, do you

9 recall whether there were more than eight Bristol

10 County Sheriff's Office employees who had tested

11 positive?

12

A. Not that I'm aware of.

13

Q. And do you have any reason to doubt the

14 veracity of the Bristol County Sheriff's Office

15 Twitter account?

16

MR. KANWIT: Objection.

17

A. Again, I don't know what -- our

18 individual that controls that -- if it was

19 documents prior to or where they got that

20 information. I don't have any idea.

21

Q. Okay. And has there been any attempt to

22 do contact tracing for the individuals who work at

23 Bristol County Sheriff's Office who tested

24 positive for COVID-19?

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1

A. Yes.

2

Q. And what attempts have been made?

3

A. We look at schedules, we look at video,

4 we look at individuals that -- anyone that tested

5 positive, where they worked, what shift they were

6 on, the location, and so forth.

7

Q. And is any effort made to test

8 individuals they may have come into contact with?

9

A. They would be informed through the memos

10 that were produced as documents from the sheriff

11 notifying individuals to shift in the locations

12 where they worked.

13

Q. Nothing else would be done in terms of

14 providing tests?

15

A. No. We do not do testing on staff. We

16 direct them to their PCP.

17

Q. And is the contact tracing that you just

18 described reflected in any of the documents that

19 you've seen?

20

A. I don't believe so.

21

Q. So there are no documents you're aware

22 of that describe the process that Bristol should

23 go through to trace contacts?

24

A. No.

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1 employees been tested for COVID-19?

2

A. Not that I'm aware of, but I don't know

3 until I see the most updated sheet.

4

Q. And was there any attempt to do

5 contract -- contact tracing for people that these

6 employees may have come into contact with?

7

A. I'm not sure, to be honest.

8

Q. And do you know whether any CPS

9 employees have begun self-quarantine since this

10 chart was updated?

11

A. I don't know.

12

Q. So between Bristol County Sheriff's

13 Office and CPS, about ten employees have tested

14 positive for COVID-19 as of April 28th, correct?

15

A. That's correct.

16

Q. And that's out of 32 employees that show

17 a test between Exhibit 26 and Exhibit 25, correct?

18

A. Whatever the numbers are.

19

Q. And I'll represent to you that by my

20 count, it is 10 out of 32, so that's approximately

21 one-third of the employees who have tested -- who

22 have been tested for COVID-19 that have tested

23 positive, correct?

24

A. By your calculations, yes.

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1 that the federal rules allow a presumptive seven

2 hours on the record for any witness. This witness

3 is not only a 30(b)(1) witness but also a 30(b)(6)

4 on eight topics, which is the entirety of the

5 30(b)(6) notice, and we're entitled to the full

6 seven hours, if not more than that, but the seven

7 hours is the presumptive amount of time, in the

8 absence of some other agreement.

9

MR. KANWIT: And you normally wouldn't

10 get him on a deposition as quickly as you did

11 under the federal rules.

12

MS. CURTIS: Well, we're talking about a

13 preliminary injunction here, so we have to have

14 pretty quick discovery. Why don't we get into it?

15

MR. KANWIT: How much time do you want

16 to take fencing about this?

17

MS. CURTIS: The question is --

18

MR. KANWIT: How long?

19

MS. CURTIS: -- how much time you're

20 willing to take talking about --

21

MR. KANWIT: Clock's running.

22

MS. CURTIS: -- running out the clock.

23 So why don't we get back to Superintendent Souza.

24 BY MS. CURTIS:

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Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

303

1

Q. So what I'm going to do, in light of

2 Attorney Kanwit's representations, is talk about

3 some 30(b)(1) topics. There are two 30(b)(6)

4 topics we haven't covered yet, which is topics 5

5 and 6. I hope to get to both of those today, but

6 if not, we are not waiving the right to cover

7 those at a later date. But just to let the

8 witness know that right now, you're only providing

9 30(b)(1) testimony, not testimony on behalf of

10 Bristol.

11

Do you understand?

12

A. Yes.

13

Q. Okay. You agree that social distancing

14 is important in combatting the spread of COVID-19,

15 right?

16

A. Yes.

17

Q. And you agree that washing hands is

18 important in combatting the spread of COVID-19,

19 correct?

20

A. As well as any other disease.

21

Q. And you agree that disinfecting common

22 areas is important in combatting the spread of

23 COVID-19, right?

24

A. As well as other diseases.

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Conducted on May 1, 2020

306

1

A. Correct.

2

Q. And the toilets as well?

3

A. I would say yes.

4

Q. Visitation is not currently allowed at

5 Bristol, correct?

6

A. Correct.

7

Q. When did Bristol decide to stop

8 visitation?

9

A. I don't have the exact date, but it is

10 on the memo from the sheriff about suspending

11 visits.

12

Q. And visits were suspended because they

13 can't happen safely right now, correct?

14

A. Visits can't happen because we don't

15 want other people coming into the institution.

16 All visits are noncontact.

17

Q. But you would agree that visitations

18 can't currently happen safely, right?

19

A. Correct.

20

Q. And all employees at Bristol are

21 considered emergency status or essential, correct?

22

A. That's correct.

23

Q. And you agree with me that COVID-19

24 presents a historic challenge to Bristol, correct?

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Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

308

1

Q. And you agree that preventing infection

2 requires vigilant social distancing and personal

3 sanitation, right?

4

MR. KANWIT: Objection.

5

A. Can you repeat that question.

6

Q. Yeah. If you look at that same

7 paragraph, the second sentence says "Provided we

8 remain mindful and vigilant with our social

9 distancing and personal sanitation both here and

10 in the community, we can reach our shared goal of

11 preventing our inmate population, us, and our

12 families from becoming exposed to and infected by

13 COVID-19."

14

Do you see that?

15

A. I can't -- I can't see the very bottom

16 of it.

17

MS. CURTIS: Miles, can you scroll down

18 a little.

19

A. Thank you. Yes.

20

Q. And do you agree with Sheriff Hodgson

21 that preventing infection requires vigilant social

22 distancing and person sanitation?

23

A. As -- as he stated there, yes, both --

24 both here and within the community.

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Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

311

1

Q. Okay. And you testified earlier that

2 you communicate with some peers at similar

3 institutions in Massachusetts, correct?

4

A. Correct.

5

Q. And are you aware of other correctional

6 facilities in the United States having had

7 outbreaks of COVID-19?

8

A. Yes, I've heard it on the news.

9

Q. And are you aware that some of the

10 largest outbreaks in the United States so far have

11 been correctional facilities?

12

A. Correctional facilities and nursing

13 homes, I've heard both.

14

MS. CURTIS: And, Miles, if you can pull

15 up 15.

16

AV TECHNICIAN: One second.

17

Q. And I've had marked here as Exhibit 15 a

18 New York Times article called "Coronavirus in the

19 U.S., Latest Map and Case Count," last updated

20 April 29th, 2020 at 8:56 a.m.

21

Have you seen this document before?

22

A. No, I have not.

23

MS. CURTIS: Miles, if you could go down

24 to the tenth page of the PDF, and let's scroll

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Conducted on May 1, 2020

312

1 down to the last paragraph of the page.

2

Q. Do you see that this says at the -- that

3 last paragraph, first sentence, "Times journalists

4 have for weeks tracked clusters of cases and

5 deaths across the country"?

6

A. Yes, I see that.

7

Q. And the next sentence begins "The

8 largest such outbreaks include prisons in Ohio and

9 Arkansas."

10

Do you see that?

11

A. I do.

12

Q. And following that --

13

MS. CURTIS: Miles, if you could scroll

14 down.

15

Q. -- there's a list of the largest

16 clusters of outbreaks.

17

Do you see that?

18

A. Yes, I do.

19

Q. And the first outbreak is in a

20 correctional facility in Ohio, correct?

21

A. Correct.

22

Q. The second outbreak is in a different

23 correctional facility a Ohio, right?

24

A. Correct.

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Conducted on May 1, 2020

313

1

Q. The next one is at a pork processing

2 facility in South Dakota, correct?

3

A. That's what it says.

4

Q. And the next one is at the U.S.S.

5 Theodore Roosevelt?

6

A. Yep.

7

Q. And the fifth entry on the list is a

8 correctional facility, correct?

9

A. Correct.

10

Q. The sixth entry on the list is a

11 correctional facility, right?

12

A. That's what it says.

13

Q. The seventh entry on the list is a

14 correctional facility, right?

15

A. Correct.

16

Q. The eighth entry on the list is a

17 correctional facility, correct?

18

A. Correct.

19

Q. The ninth entry on the list is a

20 correctional facility, right?

21

A. That's what it says.

22

Q. And the tenth entry on the list is a

23 correctional facility, correct?

24

A. Correct.

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Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

314

1

Q. So of the ten largest outbreaks in the

2 U.S. as of April 29th, eight were in correctional

3 facilities, correct?

4

MR. KANWIT: Objection.

5

Can you scroll up, because it's not

6 clear to me it's showing the largest outbreaks or

7 just cases connected to.

8

Q. Superintendent Souza, my question is of

9 the ten largest outbreaks in the U.S., per this

10 list, eight were in correctional facilities,

11 correct?

12

MR. KANWIT: Objection.

13

A. The outbreaks by this form, yes.

14

Q. And do you know how, if at all, the

15 housing setups in these facilities on this list

16 differ from those in Bristol?

17

A. I have no idea any of those facilities.

18

Q. And do you know how, if at all, the

19 practices on testing in these facilities differ

20 from those in Bristol?

21

A. You broke up.

22

Q. Do you know how, if at all, the

23 practices on testing in these facilities differ

24 from those in Bristol?

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Transcript of Steven Souza, Corporate Representative

Conducted on May 1, 2020

315

1

A. I wouldn't know.

2

Q. Can we pull up 16.

3

I've had marked as Exhibit 16 an

4 editorial in The New England Journal of Medicine

5 titled "Asymptomatic Transmission, the Achilles'

6 Heel of Current Strategies to Control COVID-19."

7

Have you seen this document before?

8

A. No, I have not.

9

Q. And would you agree that the New England

10 Journal of Medicine is one of the most highly

11 regarded medical journals in the world?

12

MR. KANWIT: Objection.

13

A. I don't have an opinion on that.

14

Q. 'Cause you're not a medical

15 professional, right?

16

A. That's correct.

17

Q. And just going back to my question about

18 other facilities with outbreaks, can you identify

19 anything Bristol's done differently from those

20 facilities that would make an outbreak at Bristol

21 less likely than an outbreak at those facilities?

22

MR. KANWIT: Objection. He already

23 testified he doesn't know what they're doing.

24

Q. You can answer the question.

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Conducted on May 1, 2020

318

1

A. That's what I've heard, yes.

2

Q. And do you see that the next sentence in

3 Exhibit 16 here says "This recommendation for

4 SARS-CoV-2 testing of asymptomatic persons in

5 skilled nursing facilities should most likely be

6 expanded to other congregate living situations,

7 such as prisons and jails"?

8

A. I see what it says there.

9

Q. And Bristol is not doing asymptomatic

10 testing, correct?

11

A. That's correct. Following the CDC, DPH

12 guidelines.

13

Q. Now, Bristol has access to three area

14 hospitals, correct?

15

A. Several area hospitals.

16

Q. And those are St. Luke's, Charlton

17 Memorial, and Morton; is that right?

18

A. Amongst a few of them, yes.

19

Q. And what are the others?

20

A. You have Sturdy Hospital. You have St.

21 Anne's Hospital.

22

Q. And you would not want to overwhelm any

23 of those facilities due to an outbreak at Bristol,

24 correct?

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Case 1:20-cv-10617-WGY Document 152 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF ANGELA DE JESUS CONCEPCION

I, Angela de Jesus Concepcion, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Angela de Jesus Concepcion. I was born on March 3, 1979 in the Dominican Republic. I am currently detained at the Bristol County Jail and House of Corrections. I have been detained at this facility since April 8, 2019 and am in the E/B block, and I’ve been in E/B the entire time. There are 9 people right now.

2. I am afraid of getting COVID-19 because it is impossible to keep social distance here. In the E/B block, each cell has very little space, and has capacity for 2 people—and right now, there is one woman per cell. They started putting each woman in their own cell in the beginning of April.

3. I have been detained here for over a year. During the time I have been detained here, they usually move a lot of people around, and the E/B unit is usually at capacity. Since this lawsuit started, it has been the only time that there has been a dramatic decrease to 9 out of 38 beds—and it was a full house before the lawsuit. I am concerned that because my case is taking such a long time to pend, that the current conditions are going to change, and there will be an increase again in the population—all while COVID-19 is going on.

4. They handed out fabric masks to all the women in my unit the second week of April—each woman got one mask. Each woman is expected to wash their one fabric mask, and doesn’t have a replacement mask while it is being washed.

Case 1:20-cv-10617-WGY Document 152 Filed 05/06/20 Page 2 of 2

5. They just started giving us cleaning supplies for the common areas and our individual cells after the lawsuit started. Before then, we just were using soap and water. The soap gets refilled every Friday, and we frequently have one or two days when we do not have any soap when we run out. We have never had hand sanitizer here.
6. The law library, television area, and washing area to wash dishes are all in the same room. If more than 2 people want to watch a movie, it is impossible and unrealistic to keep 6 feet apart because there is no space to stay apart. I do a lot of research for my case, and people keep coming in, and it is very problematic to be able to socially distance. We are trapped in here.
7. They bring the meal cart from the kitchen into the unit. We eat our meals in what we call the common room. There are 3 tables—2 little ones and 1 large one. I worry because the virus could be airborne, and there are people coming and going from the outside all the time. There is a possibility that somebody from outside can bring it in, and not have symptoms, but could still infect others. It is not a zero possibility that we won’t get it.
8. This declaration was read to me in English, and I swear it is true. I have authorized Melanie Gleason, Esq., staff attorney at Lawyers for Civil Rights, to sign for me.

Dated: May 4, 2020

/s/ Angela de Jesus Concepcion ___________________________
Angela de Jesus Concepcion

Case 1:20-cv-10617-WGY Document 153 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF AMIRY CARLOS DIAS

I, Amiry Carlos Dias, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Amiry Carlos Dias. I was born on August 20, 1997 in Cape Verde. I am currently detained at the Bristol County Jail and House of Corrections. I have been detained at this facility since December 4, 2019, and am in the 2 East unit.

2. There are multiple things about being detained here that concern me about getting infected with COVID-19. My unit and the facility overall are really crowded; there are constantly many people in any given room. Outside staff are constantly coming in from outside the facility, and we do not know where they have been, or their whereabouts. It is impossible to be able to effectively socially distance in here.

3. About 3 weeks ago, there was one other inmate here who had asked to get tested for COVID-19. To my knowledge, he was never tested. He isn’t here at the facility anymore, I’m not sure what happened to him. There was also a nurse here who contracted it, but I also don’t know where she is. I’ve also heard facility staff say a couple of the officers were infected with it, but I don’t know who.

4. There are 5 people in my cell, and there are new people coming in. There are 4 bunk beds there. All the beds are occupied; there are 4 others sleeping on the bottom bunks, and 1 person on the top bunk.

5. There are around 52 people detained in 2 East. The bathrooms are always crowded. There is no limit to how many people are in the bathroom at any given

Case 1:20-cv-10617-WGY Document 153 Filed 05/06/20 Page 2 of 2

time, and the showers are open. At least 5 people are in the bathroom at any given time, and there is not definitely not enough room to keep 6+ feet apart. We run out of soap constantly, and right now we are out of soap. They don’t provide us with any other soap. Every week, we run out, and they only restock on Thursdays. We often go entire weekends without any soap and have to wait until Thursday.
6. Cleaning at the facility is done by all the inmates. They have no access to cleaning supplies at all; they only use soap and water. There is mold on the showers and walls; it is not sanitary.
7. The facility just started giving us masks 2-3 days ago. They passed out 1 mask to each of us and we are supposed to reuse them. They are talking about having us wash our masks every Saturday, and it does not sound like there is a replacement mask while they are washing it. I am also not sure if we are getting the same mask back. There is a mixture of surgical and cloth masks that have been given. For the last 2-3 weeks, staff/guards started wearing masks and are wearing gloves while making their rounds. For detainees, gloves are only given if they are on cleaning duty.
8. We don’t have any supplies to clean our unit or bedding area. We only get personal care kits every 2-3 weeks, which include a toothbrush, a small bottle of shampoo, and deodorant. If people don’t have enough in their commissary account, people go without until the next time the facility hands them out. People run out of things all the time.
9. During meals, everyone is still crowded together in the dining area. They don’t let us bring back food back to our cells. Everyone is seated very closely together in the dining area—just a few inches apart. There are around 15 tables, with at least 6 people per table. Social distancing isn’t being enforced here, and they aren’t telling people to sit at different tables. There are several people who are handing out food, and they just started wearing masks and gloves this Monday.
10. There has never been any hand sanitizer at the facility since I have been there. All the time, people constantly go in and out, touching the same door and other common surfaces. I only see doorknobs sprayed once a day, if even that, at night.
11. This declaration was read to me in English, and I swear it is true. I have authorized Melanie Gleason, Esq., staff attorney at Lawyers for Civil Rights, to sign for me.

Dated: May 1, 2020

/s/ Amiry Carlos Dias ___________________________ Amiry Carlos Dias

Case 1:20-cv-10617-WGY Document 154 Filed 05/06/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

DECLARATION OF ISAAC DOE
I, Isaac Doe, declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. My name is Isaac Doe and I am currently detained at the Bristol County Jail and House of Corrections. I have been detained in the 2 East unit at this facility for close to eight months.
2. There have not been significant changes in our conditions since late March. In 2 East, we live in cells with four bunk beds each. Three of the bunk beds are next to each other in a straight line and one bunk bed is by the window. They are all close to each other.
3. The Correctional Officers (COs) have been trying to move some people around. They tried to make it so that there were only four people in a cell and people would sleep with one person in the bottom bunk and the next bunk over has someone in the top bunk. But they can’t do that for all the cells because there are too many people in the Unit to have four people per cell. For cells with more than four people, they tried to make people sleep in opposite directions but even that was too hard to enforce. The COs couldn’t keep going into cells and telling people to sleep a different way.
4. There are five people in my cell right now, so three bunks have one person and one bunk has two people in it. But it doesn’t even matter because people are always around each other’s bunks. For example, I saw my cellmates playing cards on one person’s bunk, so no one is even enforcing the distance.
5. The new sleeping arrangements don’t matter. We have contact with all other immigration detainees and jailers throughout the day. We share bathrooms, the day room, and the recreation space. When people eat, they sit right next to each other—about 2 feet away.
1

Case 1:20-cv-10617-WGY Document 154 Filed 05/06/20 Page 2 of 4
The COs do not enforce social distancing. I see people frequently sitting in the same corner together and the COs don’t do anything about it.
6. We do not leave the block. It used to be the case that we could report to the medical wing, but now that’s been closed off except for the most serious of medical problems. Instead now, you go see the nurse at the nurse’s station.
7. The only major change is that the COs are now requiring us to wear masks. The staff first provided us masks in the second week of March. We were told that it was not mandatory to wear them, but that the staff were required to provide them. However, the masks we were given were too thick to breathe in – they were made from the same material that uniforms are made out of.
8. However, a few weeks later, the COs informed us that we had to wear a mask at all times unless we were in our cell or eating. Some of the guys had put their original mask in the laundry or misplaced it.
9. On Monday, April 27, the COs brought in a stack of disposable masks and said that those who didn’t have masks could take a disposable mask. However, I saw that for people who went up to get masks, they were written up for not having a mask even though they were never told they would be penalized for taking a new mask. From speaking to others in my unit, I believe around ~40 people were written up. Getting ticketed can mean a lot of things: you could get locked in your cell for a day or get put in segregation. Two of my cellmates got disciplined with being locked in their cell for a day for trying to get a mask.
10. They didn’t make the COs or us wear masks until April. But they don’t take it seriously. Just last Friday, May 1, I was talking to a CO and his mask was down while he was talking to me. There are a lot of COs who have their masks down when we talk to them.
11. We also don’t have enough soap. The staff gave everyone in the Unit a small piece of soap in mid-April. I think they did this twice, but that’s it. The piece of soap was so small that it broke into three pieces while I was using it. We still have an issue with no soap in the bathroom. We share two bathrooms. Right now, for example, there is only one dispenser with soap in it, so if you want to get soap, you have to go to the other bathroom to get some. So you’re forced to touch dirty door handles just to get to the soap. We asked for more soap a few days ago, but the dispenser still has not been filled.
12. The COs tell us that they fill the soap on a weekly basis, but that’s not good enough because the soap will run out earlier than that.
13. There is no hand sanitizer in my unit. We have some cleaning supplies, but they are watered down so it’s like just using water. People will try to clean, but the mops are also dirty.
14. The unit is just not clean. The sheriff’s office said that they sanitize the block three times a day, but I haven’t seen that. I see a lieutenant that comes around once a day at night to
2

Case 1:20-cv-10617-WGY Document 154 Filed 05/06/20 Page 3 of 4
spray the doorknobs, but she doesn’t wipe them down. The bathroom is out of control. We share all of the common areas and people are in and out of each other’s cells every day. There’s no way for us to keep safe.
15. Detainees do all of the cleaning in the unit, including the bathroom and other shared spaces. They are given water and a power washer for the bathroom, but no real chemicals. The chemical bottles are watered down. The workers who do cleaning and meal service get gloves, but no one else. Sometimes, there are not enough gloves. Also, no staff has ever opened the windows in my unit. I don’t think the windows in 2 East even open; they are just there to look out of.
16. It’s been so bad in here that we had a work strike on Monday, April 27. We had so much stress building up. The sheriff is always in the newspaper or on television saying that we’re safe and well protected, but they’re not doing anything to protect us in here. There are so many people in here that they can’t implement social distancing. There was a meeting, then, where we tried to tell the Lieutenant and staff that there is no soap and our other demands.
17. They said they would take our concerns seriously, but I don’t know. It’s always like this – you try to express your concerns to the CO, and then they call the Lieutenant. The Lieutenant then has to call the major. Someone always has to talk to the person above them, so we don’t hear anything for a long time. This is the third meeting we’ve had with them about the same things.
18. We ended the work strike because the workers were getting written up with tickets. We didn’t want people to get locked in or put into solitary so people started working again. I don’t want people to get penalized.
19. On top of that, the staff have brought in new jailers from downstairs or from other facilities. To my knowledge, they’re not being tested for COVID-19, not even a thermometer test when they come in.
20. Last month, one of the guys in my unit had symptoms so they quarantined him and everyone from his cell. When you get quarantined, they put you in segregation for a week without showering or anything. You’re just stuck in there.
21. If I could go home, I could social distance. I could actually quarantine myself.
22. I’m scared. I’m waiting to catch it. They’re not testing people who aren’t showing any symptoms, but we know that people can be carriers and not show symptoms. I could be passing it on by just eating with someone or sitting in my cell.
23. This pandemic is not a joke, it’s very serious. But I don’t feel that they’re taking it or our safety seriously. We’re stuck here and the COs and staff are already contracting the virus. Another three COs just tested positive recently, but the Sheriff is still saying that this facility is safe, that the jail is so polished you could eat off the floor. They’re saying it’s
3

Case 1:20-cv-10617-WGY Document 154 Filed 05/06/20 Page 4 of 4

safer in here than being on the streets. This is what’s getting us so stressed. How could anyone see what’s in here and think it’s safe? We’re right on top of each other. We’re sitting ducks. And on top of that, we’re not being treated as we should when it comes to our safety.
24. I’ve been detained for around 8 months, but it feels like 10 years. I’ve been waiting for a ruling on my file. It makes me feel like giving up. When I saw my name was on the list, I had a sense of hope. But since then, it’s been waiting, waiting, waiting. It’s stressful. Every day, I wake up and struggle to cope with things to get through the day, because it’s getting harder and harder to. I’m a sitting duck in here.
25. This declaration was read to me in English and I swear it is true. I have authorized Megan Yan, law student intern working on Savino v. Souza, to sign it for me.

Date: May 4, 2020

/s/ Isaac Doe Isaac Doe

4

Case 1:20-cv-10617-WGY Document 155 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF ABDULAYE FALL

I, Abdulaye Fall, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Abdulaye Fall. I am a detainee in Unit B and have been here for approximately 1 year.

2. I am really in fear of getting infected by COVID-19 in here. The conditions are horrible, and there is no way for us to socially distance. I am very scared about this. I don’t want to end up getting sick and dying because of this.

3. The bathrooms have not been cleaned at all for at least a week. Detainees used to do that cleaning, but that has stopped. Even when we used to clean, conditions were not very good, and we were often just cleaning with water. There was one broom, that was used both for cleaning the bathroom and the common areas. But now no one is doing even that cleaning. Detainees aren’t doing it, there are no janitors, and no other staff does it either.

4. This means that the bathrooms are dirty and getting worse. There are flies in the bathroom, and leaking, standing water. There is toilet paper and other trash on the floor.

Case 1:20-cv-10617-WGY Document 155 Filed 05/06/20 Page 2 of 2

5. We are still sleeping in all 5 rows of bunk beds. We are right next to each other, and when people get up in the middle of the night or in the morning and walk down the aisles, they pass right next to people in their beds.

6. They gave us one mask each about 2 weeks ago. I have not had a replacement since then, and I don’t know how we’re supposed to clean them.

7. Staff sometimes wear masks now, but sometimes don’t. Detainees don’t have any gloves. Staff now serve meals, wearing the same gloves they wear throughout the day.

8. I am scared to even go to Medical, which is in another facility. When you go there, you are put in a cell to wait, which is used to hold all kinds of other people before and after, other ICE detainees, inmates, people who are coming back from court. There is no disinfecting of that cell that I am aware of between uses. You also have to have a metal detector used on you, and they use that same equipment on everyone who comes through there. I have never seen that disinfected or cleaned between uses either.

9. The air quality is very concerning to me as well. About six months ago, I saw them try to clean inside of the air conditioning, and it looked very dirty and moldy. They tried to use a vacuum to clean, but there was no way to do that. There is no real ventilation, unless you go outside and there is a time limit for that.

10. When there is an inspection, they try to make everything look nice and clean, but that is not the way everything usually is. I have seen that many times during my time here.

This declaration was read to me in English and I swear it is true. I have authorized Oren Sellstrom, who is my counsel, to sign for me.

Dated: May 1, 2020

/s/ Abdulaye Fall Abdulaye Fall

Case 1:20-cv-10617-WGY Document 156 Filed 05/06/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF AMAURY REYES BATISTA

I, Amaury Reyes Batista, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Amaury Reyes Batista. I was born on October 20, 1975 in the Dominican Republic. I am currently detained at the Bristol County Jail and House of Corrections. I have been detained at this facility since November 26, 2019, and am in Unit A.

2. Being detained here while COVID-19 is happening, I am feeling very anxious, and have developed high blood pressure—a problem I never dealt with before. My biggest concern about being here while COVID-19 is going on, is that hardly anything has changed in Unit A.

3. The only changes have been that now, there are some more beds in between us, but we are still all living in the same room, breathing the same air. We were not given masks until a little over 2 weeks ago. We were told to wash our masks every 24 hours, but not given a replacement mask while that is supposed to be happening, so that has put us in a difficult situation. I also don’t see the medical staff always wearing gloves when they are giving out medicine. There are still other staff who don’t wear masks, and there are signs that say that it is an option for staff to wear gloves.

4. There were staff who came into Unit A on Wednesday, April 22, and started welding the beds together because the bunk beds were coming apart and wobbling. So, they started to reinforce all 35 bunk beds, and there was a lot of smoke. They never told us they were going to do this, and there were about 12 of

Case 1:20-cv-10617-WGY Document 156 Filed 05/06/20 Page 2 of 3
us inside the unit. After one of the staff opened one of the doors, there was still a lot of smoke inside. I asked a Correctional Officer (CO), Mr. Santos, to get a ventilator to circulate more air in the unit. He refused to do so, and then I asked if all of us in the unit could be moved somewhere else because of the smoke while the construction was going on. CO Santos said there was nowhere else to go. Some of us then went into the classroom to get away from the smoke. There were a few of us there, and one of the other detainees in our block, Melvin Mateo Mateo, went into the classroom and said he took 2 puffs of his asthma inhaler and thought he may be having an asthma attack. I took him over to CO Santos and told him he was about to have an attack. CO Santos called the nurse over.
5. While CO Santos called the nurse over, I brought Melvin outside to breathe. While I was outside with Melvin, another detainee, Jose Rivera Fernandez, went over to CO Santos and told him he was having a breathing problem, too. CO Santos thought that I was causing trouble by organizing people in the classroom into protest, which is not what I was doing. I was then put in segregation for 9 days, starting April 22nd, and I was released this morning, Friday, May 1.
6. While I was in segregation, on the first night, my left arm was feeling numb and I was feeling very uncomfortable—and I was scared. I called the CO in segregation and told him what I was experiencing. The CO denied me access to see the nurse. When the nurse came into my cell to give me my medication, I expressed my concern to her, and she told me that I really had some problems, and she was worried. The nurse was also accompanied by the segregation CO. The CO still said in front of her, that he didn’t want me to go. But she insisted. Then, he backed down.
7. Then, the nurse took me with her to the medical section. They had me do an EKG in a separate room—and it came back relatively normal for me. The EKG that I had before, revealed that I had some heart issues. I told the nurse that I preferred to be monitored in medical because I did not want to get worse. That is when the nurse told me that all of the medical rooms were for people who have COVID-19. She said, “You do not want to be in there.” Then, another nurse came up to her and said that they were going to hold detainees with COVID-19 there as long as they could, and then she left.
8. While I was in segregation, I overheard another detainee who was below me talking to himself about having COVID, and I asked him about it. He said that there was a separate quarantine section in the facility for people who they thought were exposed to the virus. He thought he may have had it, but he was never checked—and he thought other people have it the facility. He said something along the lines of: “I think if they don’t see you dying, they are not going to give you a test. They think you have the flu, and they won’t send you to a doctor.”
9. Then, on Wednesday, April 29, I had a medical follow-up with a doctor, and it was a video appointment. They had someone take my blood pressure, and it was

Case 1:20-cv-10617-WGY Document 156 Filed 05/06/20 Page 3 of 3

around 179/122. The doctor said I could easily have a heart attack, and put me on a high blood pressure medicine. My anxiety is through the roof because of COVID-19 too, and I am afraid to speak out in the future because of the retaliation I experienced recently.
10. The conditions at the facility have hardly changed. At the sinks in Unit A, we have to wash our own bowls and dishes, and brush our teeth in the same space— so those germs are mixing everywhere. The soap is 90% diluted, and you have to pump it a lot to get a good amount of soap going. We eat on our beds because there isn’t enough room to socially distance in the dining hall. We would need to be sitting one person per table in order to be 6 feet apart from each other.
11. This declaration was read to me in English, and I swear it is true. I have authorized Melanie Gleason, Esq., staff attorney at Lawyers for Civil Rights, to sign for me.

Dated: May 1, 2020

/s/ Amaury Reyes Batista __________________________ Amaury Reyes Batista

Case 1:20-cv-10617-WGY Document 157 Filed 05/06/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF LLOYD WAFULA

I, Lloyd Wafula, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Lloyd Wafula. I am a detainee in Unit B and have been here for approximately 9 months.

2. I am extremely scared about contracting the coronavirus because of the conditions in here.

3. There is no consistent cleaning of Unit B. Right now, no one has cleaned for about a week. The Correctional Officers (COs) sweep the common area, but that is it.

4. The bathrooms used to be cleaned by detainees every other day, with power-washing and scrubbing. But this changed several weeks ago, and now no one does it.

5. Since then, no regular cleaning has occurred and conditions have become much dirtier. No one cleans the bathrooms, including the toilets, showers, and sinks on any kind of regular basis. Every once in a while, I see COs wiping down the mirrors and some other surfaces, but nothing that is consistent or thorough.

6. As a result, Unit B, and the bathrooms in particular, are very dirty. I have seen mold and mildew in the bathrooms. There is trash and shampoo bottles and toilet paper on the floors. I got an infection on my foot, which I believe is from the shower.

Case 1:20-cv-10617-WGY Document 157 Filed 05/06/20 Page 2 of 3
7. The toilets get clogged and no one does anything about it. There can be feces in it, and overflowing. Detainees end up cleaning it. You can see fecal matter on the toilet seats. There are no toilet lids on any of the toilets.
8. There is no regular cleaning of other surfaces either. I have never seen the shared water fountain cleaned, so I don’t use it. There is no cleaning of phones and door knobs and other items like a chin-up bar after every use. I have seen staff spray something on those surfaces in the morning and in the evening, but not throughout the day or after use. I have not seen staff or anyone else spray or disinfect the tables and chairs.
9. There are about 25 of us in Unit B now. For a while a couple of weeks ago, they had us sleeping every other row. Then that changed, because some people were sharing bunks. The COs moved us again about a week ago. Now we sleep in every row again, so that no one has to share a bunk. The problem is that this means we are very close to each other in every row. It feels like people are breathing right on top of each other, and the smells of the other detainees are very close.
10. Staff use of protective equipment is inconsistent. Some wear masks. Others wear them but have them up on their foreheads or down on their chins. Nurses usually wear masks but don’t always wear gloves, even when giving out medications. I have filed a grievance about this in the past, but I never heard back about that. I am also concerned about retaliation for complaining, because I have been put in Segregation before and they have a lot of power over us.
11. We were given cloth masks for our personal use, about 2 weeks ago. We are told we have to wash them ourselves. But we are not currently allowed to go into the laundry area, so it’s not clear to me how we are supposed to do that. Laundry workers used to do the laundry, but they don’t do that now. No gloves have been issued to us.
12. We have been given one hygiene kit every week. This contains toothbrush, toothpaste, and a little shampoo bottle. We have no access to any cleaning supplies to wipe down our bunk or any other shared area we might use. They don’t give us any personal hand sanitizer for us to use.
13. When I have gone to medical, they pat you down and use a metal detector that you have to place your chin on. I have not seen that disinfected, and it is also being used on inmates from other units who are also in medical. This is also used on people that are coming straight from the streets. While we are waiting for medical, or to be brought back to Unit B, we are held in cells that other inmates and others who are being admitted have just been in and there is no cleaning or disinfecting between uses.

Case 1:20-cv-10617-WGY Document 157 Filed 05/06/20 Page 3 of 3

14. For meals, we still eat in the common area. There is not enough room to practice social distancing at the tables. The same is true for other areas, such as watching TV or going to church.

This declaration was read to me in English and I swear that it is true. I have authorized Oren Sellstrom, who is my counsel, to sign for me.

Signed: /s/ Lloyd Wafula

Date: ____May 1, 2020______________________

Case 1:20-cv-10617-WGY Document 158 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF JHONY BONILLA OCHOA

I, Jhony Bonilla Ochoa, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Jhony Bonilla Ochoa. I am a detainee in 2 East and have been detained here since March 3, 2020. I am in a cell with four other detainees.

2. I am very fearful of getting COVID-19 because of the horrible conditions in 2 East. I know that if I am released, I would be able to better protect myself against the virus.

3. In late March, I completed a sick slip complaining of flu-like symptoms, a sore throat, and that I felt feverish. After waiting two weeks, I was finally taken to the Medical unit on a Friday. I was first treated for the flu, but later that day the nurses decided to test me for COVID-19. When I was tested for COVID-19, two of the nurses did not wear masks or gloves around me. The nurses made fun of me for possibly having COVID-19 and joked about how they should wear masks around me.

4. I was then locked-up for four days with no access to a shower, no phone calls, and given only two meals a day which were slid through a small hole. My temperature was tested only once a night, and I never had a fever. No one explained to me what was happening.

5. On a Tuesday, my test came back negative. I asked why I was still locked-up if my test was negative, I did not have a fever, and I felt better. I requested to see the doctor. The

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Case 1:20-cv-10617-WGY Document 158 Filed 05/06/20 Page 2 of 2

nurses took my temperature and blood pressure and reported it to the doctor. The doctor said it was okay for me to go back to the unit. Those four days felt like punishment, and I lost a lot of weight.

6. The day I received my test results, I was released from the Medical unit back to 2 East. The nurses then took the temperature of everyone in the unit. The nurses have not come back since to do temperature checks.

7. I first saw guards start wearing masks the week of April 27, 2020, but not all guards wear masks. Some of the guards will just carry their mask around. The guards often come in close contact with us, like when they hand us paperwork. I am fearful that the guards who do not wear masks could get us infected with COVID-19.

8. We were each given one mask that is of poor quality and made out of cloth. On April 30, 2020, I asked for an extra mask so I could send my mask to the laundromat to be cleaned. I heard other detainees also ask for an extra mask. After I asked for the extra mask, I was given a punishment ticket, which means I must stay in my cell for 24 hours. I observed the same occur for other detainees.

9. Not everyone wears a mask, and many are confused about why we should wear a mask. When we were given the masks, no one explained to us why or how we should wear the masks. I wear my mask most of the time, but it is very hot and humid in my cell, so it makes it difficult to breathe when I wear the mask. The air ducts are clogged with dust and paper, so we do not have a constant, clean air flow.

10. No one else in my cell wears their mask. My cell is 10 feet wide and 20 feet long. We have four double bunk beds. I sleep on a bottom bunk bed, and one of my cellmates sleeps on the top bunk bed.

11. The bathrooms do not have any soap in the soap dispensers. We were given one tiny soap twice in the past three weeks. There are only two sinks in the bathroom that work, so some people use the water fountain to wash their hands. I am not able to keep my hands clean.

This declaration was read to me in English and I swear it is true. I have authorized Mikayla Foster, who is my counsel, to sign for me.

Dated: May 4, 2020

/s/ Jhony Bonilla Ochoa Jhony Bonilla Ochoa

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Case 1:20-cv-10617-WGY Document 159 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

DECLARATION OF JAIRON CASTILLO MARTINEZ
I, Jairon Castillo Martinez, declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. My name is Jairon Castillo Martinez and I am currently detained at the Bristol County Jail and House of Corrections. I have been detained in the 2 East unit, also known as room 250, since September 2019.
2. I am an immigration detainee.
3. New individuals have recently come into 2 East. Two new inmates arrived in my unit yesterday, on May 4, 2020.
4. In 2 East, we live in cells. As of now, we have five people sharing the cell I am in. The cell has four bunks.
5. Two people sleep in the first bunk. All of the other bunks have one person each. I have slept in the same bed since September 2019.
6. We cannot leave the 2 East Unit to go to the medical unit whenever we want. We have to put in a request to be seen by the medical staff or to get medication. It takes a long time to get seen after entering a request. I have had significant delays getting my medication.
7. The bathrooms are disgusting. Inmates and detainees are assigned to clean the bathrooms twice a day. I have been on duty to clean the bathrooms. We use the same mop and broom in the bathroom and in the cells where we sleep. When cleaning the bathrooms, we are given some type of disinfectant, but I do not know what it is. There have been several times when the detainees cleaning the bathrooms have requested gloves and not received them. 1
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Case 1:20-cv-10617-WGY Document 159 Filed 05/06/20 Page 2 of 2

8. We were given one mask two or three weeks ago. They have been washed once. When we sent them to be washed that one time, everyone had to put their mask in the same laundry bag. No one could tell when the masks came back which one belonged to them. If we ask for a new mask, we are given a disciplinary ticket.
9. I have started carrying my own soap container because there is often none available. I bought a bottle of lotion from the canteen and have used that bottle to store soap and shampoo when I can.
10. We are being treated incorrectly.
11. I have reviewed the information stated above with Mike Brown, an attorney working on Savino v. Souza, and I swear it is true. I have authorized Attorney Brown to sign this for me.

Date: May 5, 2020

/s/ Jairon Castillo Martinez Jairon Castillo Martinez

2
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Case 1:20-cv-10617-WGY Document 160 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, et al.,
Petitioners-Plaintiffs, v. STEVEN SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617-WGY

DECLARATION OF AIRES DA GRACA
I, Aires da Graca, declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. My name is Aires Da Graca and I am currently detained at the Bristol County Jail and House of Corrections (“BCHOC”). I have been detained in the 2 East unit, also known as room 250, at this facility for seven months, since October 2019.
2. I am an immigration ICE detainee. There are criminal inmates held in 2 East as well.
3. New detainees have recently come into 2 East. Three new individuals have arrived over the past two days to my knowledge.
4. In 2 East, we live in cells. As of now, we have five people sharing the cell I am in.
5. There are four bunks in my cell. Two people sleep in the first bunk. All of the other bunks have one person each.
6. The masks we have been provided by BCHOC are not sufficient. They are difficult to breathe through. We were given only one mask. It is a handmade, cloth mask.
7. I know that individuals in 2 East have asked to get tested for coronavirus. To my knowledge, these individuals have not yet been tested.
8. The bathroom conditions in 2 East are not adequate. The showers are not sanitary, and there is mold growing them. In addition, we are constantly running out of soap.
9. The dining facilities are also not sanitary. For example, there is mold growing in the juice bins. 1
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Case 1:20-cv-10617-WGY Document 160 Filed 05/06/20 Page 2 of 2

10. I am not able to stay six feet away from the other detainees in the unit throughout the day. For example, when on attorney phone calls I am surrounded by people close to me. It is very difficult to maintain social distancing in the course of daily activities.

11. This declaration was read to me, and I swear it is true. I have authorized Mike Brown, an attorney at WilmerHale, to sign for me.

Date: May 5, 2020

/s/ Aires da Graca Aires da Graca

2
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Case 1:20-cv-10617-WGY Document 161 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF ALTAGRACIA BAEZ GUERRERO

I, Altagracia Baez Guerrero, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Altagracia Baez Guerrero. I was born on May 27, 1992 in the Dominican Republic. I am currently detained at the Bristol County Jail and House of Corrections. I have been detained at this facility since March 29, 2020. I am in the E/B block, where there are currently 9 of us.

2. I am afraid for my health because of the coronavirus. I have suffered two panic attacks since I have been detained here. I have never experienced panic attacks in my entire life—only since I’ve been detained.

3. After the panic attacks, I only received an ibuprofen, and no other medicine. I am scared of the conditions here with the coronavirus, and the coronavirus causes me a lot of stress. I constantly feel more stressed and afraid the more time goes by. I am feeling worse and worse.

4. I have heard that there are others with coronavirus here, and they are being kept in a separate medical area. I have heard that some of the guards/staff have had coronavirus and they are always coming and going from outside—no one knows where they have been.

5. The common areas are often dirty. The bathroom is small, and there are women using the toilets and sinks at the same time, so it is hard to keep our distance apart. There isn’t always soap in the bathrooms—sometimes for up to 15 days.

Case 1:20-cv-10617-WGY Document 161 Filed 05/06/20 Page 2 of 2

When we don’t have soap, we are only using water. Right now at this moment, there is still no soap.
6. A little over 2 weeks, I ago, I received a mask. But if I need to wash my mask, I don’t have a replacement mask to wear, and it is dangerous.
7. I am afraid of getting coronavirus and dying in here, and suffering another panic attack.
8. This declaration was read to me in Spanish, and I swear it is true. I have authorized Melanie Gleason, Esq., staff attorney at Lawyers for Civil Rights, to sign for me.

Dated: May 4, 2020

/s/ Altagracia Baez Guerrero ___________________________
Altagracia Baez Guerrero

Case 1:20-cv-10617-WGY Document 162 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF CONROY LEWIS

I, Conroy Lewis, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Conroy Lewis. I am a detainee in Unit B. I have been here almost 9 months.

2. The Unit is not clean and there is not room enough for us all to be six feet apart. Detainees used to clean the unit but that stopped a couple of weeks ago. Since then, there has been no regular cleaning. There are no janitors and no cleaning crew. The correctional officers (COs) refuse to clean. They say that’s not their job.

3. So the bathroom is very dirty. The shower doesn’t get cleaned. The water doesn’t get washed out. Nothing is cleaned between uses.

4. The toilet seats are dirty. There are no lids. There is nothing to clean the toilet seats with before sitting down on them. You have to try to put toilet paper down on the seat before sitting down.

5. There is no regular cleaning of door handles, telephones, and other shared surfaces, certainly not after each use.

Case 1:20-cv-10617-WGY Document 162 Filed 05/06/20 Page 2 of 2

6. We are sleeping in each row of the bunk beds. I am in the middle row, a bottom bunk. There are two men nearest to me in the same row. Also someone in the row next to me, also on the bottom. If anyone gets up, they walk right by me.
7. We don’t have gloves. We were given one cloth mask each. I try to wash mine by hand but I don’t think that is very good. If it goes to the laundry it gets mixed with other detainees’ clothes, which doesn’t seem clean to me, so I don’t do that.
8. Staff sometimes wear masks, but sometimes they don’t. When I have asked about it, they say they don’t have to.
9. Staff serve the meals now. They serve using the same dirty gloves they wear all day. Then we are expected to put the food into our mouths.
10. We don’t get wipes or anything to clean our areas. The air feels very smelly and dusty, and ventilation is not good.
11. I am scared I am going to get infected with coronavirus and get sick or die.

This declaration was read to me in English and I swear that it is true. I have authorized Oren Sellstrom, who is my counsel, to sign for me.

Signed: /s/ Conroy Lewis

Date: ____May 1, 2020______________________

Case 1:20-cv-10617-WGY Document 163 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

______________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

Et al.,

)

Petitioners-Plaintiffs, )

)

v.

)

)

STEVEN SOUZA,

)

)

Respondent-Defendant. )

)

______________________________________)

Case No. 1:20-cv-10617-WGY

DECLARATION OF MELVIN ALBERTO MATEO MATEO

I, Melvin Alberto Mateo Mateo, declare under penalty of perjury that the following is true and correct to the best of my knowledge:

1. My name is Melvin Alberto Mateo Mateo. I was born on February 20, 1985 in the Dominican Republic. I am currently detained at the Bristol County Jail and House of Corrections. I have been detained in Unit A at this facility since February 3, 2020.

2. I am afraid of getting COVID-19 and I need to be released. I have asthma and use 3 inhalers. All of the 3 inhalers I have right now are blue—and they do not work. I don’t think I have the right combination of inhalers that I need in order to manage my asthma. Even though I use the inhalers I have been given, they have not been working.

3. I see news reports on the television that say that people who have asthma are at extra risk for COVID-19, and I feel even more scared. There is another person in Unit A who also has asthma, Jose Rivera Fernandez. He told me that he has been struggling to breathe, and the inhalers are not working for him, either. I know there are others detained who have asthma, and it seems like they just give everyone inhalers, with no special attention.

4. I have asthma attacks here frequently. The severe attacks happen about twice a week, and the conditions here are not clean and irritate my asthma. I can see the dust on the floors, circulated by the air conditioner, dust near the beds where we are sleeping, and common areas. Because there is so much dust and I have allergies, my asthma flares up very often, especially at night. I am unable to sleep

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because my asthma keeps me awake. It is always very difficult to breathe, and I am coughing all the time.
5. There is no professional cleaning staff here. I think there is also mold—I see it in the bathrooms, and I think there is mold on the ceilings and floors, too. Things in general aren’t clean—our dishes aren’t clean, and often are discolored, and it is in general unsanitary here.
6. I am not sure if the medical staff knows all the details in my case and what I need. I had a recent extreme asthma attack and after waiting for around an hour and a half, a young guy eventually came, but did not give me any medicine or anything, and I continued to suffer. After 3 days, I was issued the same blue inhaler that has done nothing for my condition. In general, when I am feeling sick and needing help because of my asthma, there is usually a long wait for any response—up to a day. And that whole day, I have difficulty breathing. I have heard that there are other detainees who are sick and have COVID-19. It makes me feel very anxious because of having asthma, and my condition continues to get worse.
7. None of the staff at the detention center who I have interacted with speak Spanish. One of the other detainees in Unit A, Amaury Reyes Batista, is my translator because he is the only person in our unit who is bilingual. It has been very difficult to communicate my medical needs around my asthma because of this, and I need Mr. Reyes Batista to translate for me. It has been difficult getting language access for detainees here who don’t speak English. There is another man in my block who is from Guatemala and speaks an indigenous language better than Spanish, and there is no one who can translate for him.
8. This declaration was read to me in Spanish, and I swear it is true. I have authorized Melanie Gleason, Esq., staff attorney at Lawyers for Civil Rights, to sign for me.

Dated: May 1, 2020

/s/ Melvin Alberto Mateo Mateo ___________________________ Melvin Alberto Mateo Mateo

 
 Case 1:20-cv-10617-WGY Document 164 Filed 05/06/20 Page 1 of 36

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

OPPOSITION TO MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION In this litigation, Plaintiffs sought, and obtained, certification of a class of all civil
immigration detainees housed at the Bristol County House of Corrections (“BCHOC”). Plaintiffs claim that their Fifth Amendment rights have been violated by the conditions at BCHOC, and, particularly, the threat of infection with the coronavirus commonly called COVID-19. Plaintiffs have made it clear that the only form of relief acceptable to them is release from detention.
At issue presently is Plaintiffs’ motion for a preliminary injunction. Because an injunction would potentially grant the full relief sought, the Court has indicated that the present motion will address the merits of the case. At its core, this case is about whether BCHOC has been deliberately indifferent to the risk of infection such that Plaintiffs’ Fifth Amendment rights have been violated. While Plaintiffs seek to litigate as if the sole question is whether they are at

risk for a COVID-19 infection if they remain detained, that alone is an insufficient basis for a

preliminary injunction under their Fifth Amendment claim. This is manifestly not a case about

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how best to manage the daily affairs at BCHOC. This case must start from, and be determined in accordance with, the cause of action pleaded by Plaintiffs, which is the Fifth Amendment.1 Plaintiffs cannot meet their burden for a preliminary injunction.2 II. PROCEDURAL HISTORY
In approximately six weeks, over 150 docket entries have been received in this case. The Court is familiar with the twists and turns of the case, but is referred to the summary of the procedural history of the case attached as an exhibit hereto. The Court has certified a class, admitted a number of detainees to bond under conditions, and now takes up the temporary restraining order/preliminary injunction motion which, as the Court and parties agree, will effectively be a decision on the full merits (apart from the Rehabilitation Act claim, which remains undeveloped).
III. FACTS A. Current Situation at BCHOC Despite the dire predictions by Plaintiffs that they were under imminent threat of widespread infection and likely death, for five weeks since the petition and motions were filed there was not a single case of coronavirus confirmed among the inmate or detainee population at BCHOC. The first positive test was received on Monday, May 4, 2020. See Letter to Court, submitted in camera, May 5, 2020. While Plaintiffs will portray that as the sky is falling, it is actually a remarkable achievement by the BCHOC staff given the number of coronavirus cases
1 As the Court has recognized, Plaintiffs’ Rehabilitation Act claim is not a basis they rely on in the motion for a temporary restraining order (which has been converted by the Court to a preliminary injunction motion). See Opinion and Order, dkt. # 64.
2 In addition to this Memorandum, the Defendants also rely on, and ask the Court to consider as if incorporated herein, docket entries 26, 35, 41 and 83, along with the exhibits thereto.
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in Massachusetts and their rise during the same time period.3 During the month of April, Massachusetts went from 8,966 cases of confirmed coronavirus (representing .13 % of the Commonwealth’s population) to 69,087 (1% of the 6,893,000 residents), an almost eight-fold increase.4 During the same period, BCHOC remained at zero confirmed cases. Even with the one positive test on May 4, 2020, that is still around one-tenth of one percent of the detainee population at BCHOC. In other words, the frequency of coronavirus in the population of the Commonwealth at large is approximately ten times as great as in BCHOC.5
B. BCHOC Has Taken Extensive Measures The extensive precautions taken at BCHOC to prevent the introduction of COVID-19 into BCHOC, and to limit its spread if introduced, were largely set out in prior briefing. See Defendants’ Opposition to Motion for a Temporary Restraining Order and Supplemental Brief, docket ## 26 & 41. Since those briefs were submitted at the beginning of April, some important additional steps have been taken. First, all persons entering BCHOC are screened for elevated temperature prior to entering the facility. Anyone with an elevated temperature is turned away. Those conducting the
3 In the immediate aftermath of the one positive test, BCHOC sought to test all remaining detainees from the same unit, Unit B. 19 additional detainees agreed to be tested and their results came back negative. See Declaration of Steven Souza, attached hereto as Exhibit 1. Six of the detainees have refused to be tested. Id.
4 Massachusetts state government website at https://www.mass.gov/info-details/covid-19response-reporting (information through May 4, 2020, last accessed May 5, 2020). April 2, 2020 data taken from the same website but accessed on April 2, 2020.
5 While it is true that these numbers only represent confirmed cases, and that widespread testing has not been made available, this is as equally applicable outside the institution as inside. Thus, the comparison remains relevant to the comparative risk of BCHOC versus the wider community. See section IV. A. infra.
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screening are in personal protective equipment. See Declaration (attached as exhibit 2 to dkt. # 83) and deposition of Nelly Floriano.
Second, all BCHOC staff inside the facility are required to wear masks at all times while in the facility. Id.
Third, all detainees have been provided with face masks and are required to wear them at all times unless they are eating or lying in their beds. Id.; see also deposition of Steven Souza, May 1, 2020.
Fourth, meals are distributed directly to the detainees in covered, sanitized containers. Detainees are no longer gathering for meals. Id.
As stated in the previously submitted affidavits and declarations (Sheriff Thomas Hodgson, Dr. Nicholas Rencricca, Medical Director, Director of Clinical Services Debra Jezard, ICE Nursing Supervisor Nelly Floriano and Superintendent Steven Souza (multiple declarations), extensive precautions were already in place to minimize the risk to detainees at BCHOC. See dkt. # 26, Exhibit 1; dkt. #35; dkt. # 83, Exhibits 1 & 2. BCHOC, through its medical services contractor Correctional Psychiatric Services, Inc. (“CPS”), developed Medical Guidance for dealing with the coronavirus threat; see docket # 35 and 83 and exhibits thereto. The Medical Guidance was informed by, and comports with, the national guidance from the Centers for Disease Control (“CDC”) as well as the Massachusetts Department of Public Health (“DPH”). See affidavits of Dr. Rencricca and Debra Jezard, dkt. # 35.
Moreover, despite the inflammatory and inaccurate claims of Plaintiffs and their experts, BCHOC ICE detainees do not come from all over the country, nor are there frequent transfers into or out of BCHOC ICE units.6 Any transferee who is not coming from BCHOC criminal
6 “Furthermore, the routine practice of transferring immigrant detainees from one 4

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incarceration is screened prior to housing within the ICE units. If there are any signs or symptoms of illness, or if any of the standard questions provoke concern, the transferee is quarantined for fourteen days in accordance with CDC protocol.7
In addition to the physical separation of ICE detainees from the general inmate population, BCHOC has taken numerous other steps to limit the risk of contamination from the outside. Screening of all staff prior to entry is required. All staff are required to wear masks when in the facility. Any staff member who feels ill must not enter the facility and must be medically cleared before returning to work. Thus, while several staff members have tested positive, up until May the virus was apparently kept out of BCHOC. Moreover, the higher incidence of BCHOC positive tests for coronavirus among staff members than among detainees underscores that the risk of contracting the COVID-19 virus is greater outside BCHOC than inside.
C. A Sufficient Population Reduction Has Occurred At the outset of this litigation, there were 148 ICE detainees at BCHOC. There are presently 82.8 That represents a 45% reduction. In some of the units, the reduction has been even higher, as a percentage.9 Plaintiffs maintain that there is no safe level of population at
facility to another, throughout the nationwide immigration detention network, makes the likelihood of COVID-19 spread and infection even more likely.” Complaint, ¶ 81. This does not happen, at least, not into or out of BCHOC. See Notices of Transfer to the Court.
7 A transferee from within BCHOC is similarly screened if symptomatic. See Exhibits to dkt. # 26 & 35.
8 The Court has ordered the release of two additional individuals, so there will be 80 detainees. Dkt. # 147.
9 As the Court is aware, because ICE B was rendered uninhabitable by the ICE detainees, the 26 have been relocated. 20 of the 26 are now housed in single cells and 6 are housed in double cells. See Declaration of Steven Souza, Ex. 1 hereto.
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BCHOC. They steadfastly refuse to even consider what a safe level of detainees might be or any alternatives to release.
But the Court may not disregard the safety of the community into which the detainees will be released. It is unavoidably confronted with the question of what is the level at which social distancing is sufficiently practicable, such that the risk to the remaining detainees is balanced against the risk to the community of releasing violent individuals. Put another way, this is not simply a case of bail review for 148 individuals. Under the law, Plaintiffs must demonstrate that additional releases are required such that the Plaintiffs would prevail on their claim that ICE is deliberately indifferent to the risk of infection if no other steps are taken. See section III A infra.
Plaintiffs have suggested in their opposition to Defendants’ Motion to Stay Further Releases that social distancing cannot occur because the aisles between the bunk beds is only four feet wide.10 However, the CDC guidance for correctional facilities (as opposed to the general public guidance) recognizes that a six foot distance may not be practically achievable at all times, and thus additional precautions such as the use of masks is recommended. See Centers for Disease Control Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, attached hereto as Exhibit 2. The question is not whether the detainees will be guaranteed to be six feet away from all other humans at every moment. The question is can the practice of social distancing, tailored to existing constraints, be reasonably achieved assuming the detainees choose to be compliant and if additional steps, such
10 Plaintiffs appear to be suggesting that there are two detainees within a single bed; see ECF 91-6, Declaration of Jen Shin and Accompanying Exhibits. There are not; at most, there is one detainee on a top bunk and another on a bottom bunk, but with their heads at opposite ends.
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as masks and disinfecting, can augment social distancing. Thus, for example, Plaintiffs’ experts
opine (without having ever seen the inside of BCHOC) that detainees would be within six feet of
each other in the bathroom. It is true that this is possible, just as it is equally true that a released
detainee could be within six feet of a person who is infected while at home. It is not true that the
detainees must be within six feet of each other in the bathroom. See First Declaration of Steven
Souza, Exhibit 1 to dkt. # 83.
As further grounds, Defendants urge the Court to review their Motion to Stay, docket #
82 and the exhibits thereto. That motion goes into the physical setting of the detention areas in
great detail.11 The Court is also directed to the videos previously submitted via email to the
Courtroom Clerk, Ms. Gaudet.
D. Many of the Detainees Are Dangerous
The Court has been presented with the criminal history and flight concerns regarding all
148 original detainees plus several transferees.12 There is a range of degree of dangerousness
11 On April 7, 2020, the Court entered an order which stated in part “The Court inquires whether given the number of cells and the common areas in the detention facility there is some number of detainees who might occupy the facility and yet be adequately spaced?” Docket # 55. In response to the Court’s inquiry regarding whether there was a level of population reduction which would render the conditions relatively safe for the remaining detainees, Defendants submitted two declarations on Thursday, April 9, 2020. One was from Superintendent Steven Souza of BCHOC. That declaration went through the areas where detainees are held at BCHOC in painstaking detail, providing both dimensions and the current number of detainees housed in each. The second declaration was from Nelly Floriano, the Nursing Supervisor for ICE detainees at BCHOC. Ms. Floriano reviewed the prevention and treatment practices at the facility and stated that she was confident that the detainee population is sufficiently low so as to allow adequate social distancing (separation of six feet or more) to be practiced in all of the detainee units. Declaration of Nelly Floriano, ¶¶ 7 & 9. Unlike Plaintiffs’ experts, most of whom have never been inside BCHOC, and those that have did not have access to all the detainee areas, Ms. Floriano is in the units on a regular basis, although she has not been inside the bathrooms in the male units.
12 See dkts. 50, 52, 56, 58, 65, 67, 74, 75, 78, 79, 80, 81, 84, 85, 88, 89, 92, 94, 100, 102, 104, 105, 110, 111, 115, 116, 130, and 131.
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among the detainees that can be determined from their records. One detainee was convicted of rape in Brazil; many others have been convicted of spousal abuse. Even more have pending charges involving violence.
Within days of the lawsuit being filed, the detainees in ICE B, which is a higher risk group than ICE A, barricaded themselves in the Unit and refused to let Bristol staff enter. This is the group that made numerous false representations regarding the conditions at Bristol to the press that led to the lawsuit being filed. The same group, last Friday, May 1, 2020, engaged in what amounted to a totally lawless riot. During the course of the riot, detainees ripped sinks off the walls and smashed them. They broke windows. They barricaded doors and refused to admit prison personnel. They smashed holes in the walls and broke toilets. They rendered Unit B uninhabitable. See Souza declaration, Ex. 1, passim.
This supposedly arose because one of the detainees reported flu-like symptoms and was told he would be taken to the medical unit for testing and then placed in isolation, in accordance with the facility’s COVID-19 medical guidance. Id. An additional group of detainees claimed symptoms and were told they, too, would be taken out of the unit for testing and isolation. Id. They refused. Id. When Sheriff Hodgson entered the unit to try to talk the detainees down from their confrontational stance, one of the detainees threw a chair at the Sheriff and injured him. Id. BCHOC staff eventually regained control of the Unit with the involvement of the Special Operations Unit of Bristol County Sheriff’s Office. Id.
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One of the detainees claimed his shoulder was hurt during the riot. Id. He had been observed during the riot with a metal bar or pipe, possibly an assistance grab rail from the bathroom, concealed up his sleeve.13
In response to the news, received yesterday, that this detainee tested positive for COVID19, Plaintiffs have urged the Court to immediately release more detainees. This is a puzzling response insofar as Plaintiffs have assumed all along that one of the detainees would test positive at some point and argued for a population reduction to minimize the risk of transfer. Defendants believe that sufficient reduction has already taken place, as ordered by the Court based on its acceptance of Plaintiffs’ premise that the virus would eventually find its way into the detainee population. Because the Court has already reduced the detainee population in anticipation of a positive case of COVID-19, the fact that a single case has been confirmed does not mean that the Court should take additional drastic steps – particularly since almost one-third of the current detainees have confirmed their violent and lawless propensity in last Friday’s disturbance.14
IV. THE APPLICABLE LAW A. The Standard on Preliminary Injunctions
1. Preliminary injunctions generally: Courts disfavor preliminary injunctions that “exhibit any of three characteristics: (1) it mandates action (rather than prohibiting it), (2) it
13 This detainee, and two others who did not suffer physical injuries but who complained of anxiety and chest pain, were separately taken to the hospital. One of the detainees (the detainee who complained about his shoulder) had a temperature of 99 and was tested for COVID-19, which was positive.
14 Plaintiffs took umbrage with Defendants informing the Court of the facts of the Unit B riot after Defendants successfully argued that the riot should not be a topic in Sheriff Hodgson’s deposition. The relevance of the riot to Defendants’ position that detainees who are violent should not be released is clear. The relevance of the violent behavior of detainees, and the response thereto by BCSO, is highly attenuated to Plaintiffs’ claim that the detainees are at risk of coronavirus infection.
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changes the status quo, or (3) it grants all the relief that the moving party could expect from a
trial win.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019). All
three characteristics apply here.
“It frequently is observed that a preliminary injunction is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing, carries the burden
of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (internal
quotations omitted); Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Peoples
Federal Savings Bank v. People’s United Bank, 672 F. 2d 1, 8-9 (1st Cir. 2012)(preliminary
injunction is an extraordinary and drastic remedy that is never awarded as of right).
The burden on Plaintiffs is not merely to show that there is a risk of infection if they
remain detained. Their burden is to prove to the Court that they meet all the elements of the
standard four-part test, and that includes a likelihood of winning on the merits of their legal
claims. This cannot be overemphasized—it is not enough to show that continued detention
carries a risk of infection. Plaintiffs must show that the risk of infection and Defendants’ actions
or inaction regarding that risk amounts to deliberate indifference to their medical needs.
Nothing less will satisfy their burden of showing a likelihood of success on the merits of their Fifth Amendment claim.15
15 Because Plaintiffs are not likely to win on the merits of their Fifth Amendment claim, the Court’s determination of bail for individual class members does not meet the requirements of Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). While this Court suggested that this requirement was not absolute, Defendants believe the Woodcock approach to be sound. Moreover, unlike the present case, there was no issue in Mapp v. Reno (also relied upon by this Court), 241 F.3d 221, 228–29 (2d Cir. 2001), as to whether Congress had expressly limited federal judicial power to grant bail to aliens because ICE [then “INS”] had withdrawn its claim that mandatory detention applied. The Defendants in this case maintain that mandatory detention does apply to many of the class members. Therefore, under Mapp’s reasoning, bail is not available for all class members and the Court may wish to reconsider its interpretation of Mapp accordingly.
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In moving for a temporary restraining order or a preliminary injunction plaintiffs “must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Id. (setting out the standard four-part test); Equal Employment Opportunity Comm’n, v. Astra USA, Inc., 94 F.3d 738, 742 (1st Cir. 1996)(burden of proof in a temporary restraining order or preliminary injunction motion is on the moving party). Thus, the Plaintiffs must meet all four requirements of the traditional test.
Courts generally do not issue mandatory preliminary injunctions unless the facts and law are clearly in favor of the moving party. See Northeastern University v. BAE Systems Information and Electronic Systems Integration, Inc., Civil Action No. 13-12497-NMG, 2013 WL 6210646 at *7 (D. Mass. Nov. 27, 2017) citing L.L. Bean v. Bank of America, 630 F. Supp. 2d 83, 89 (D. Me. 2009). The likelihood of success on merits is the sine qua non of such motions. Jean v. Massachusetts State Police, 492 F. 3d 24, 26 (1st Cir. 2007).
In a situation where a movant seeks to require action of the nonmoving party, in alteration of the status quo, rather than maintenance of it, courts have held the moving party to a more rigorous standard. See Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 151 (1st Cir. 1998). A mandatory preliminary injunction “disturbs rather than preserves the status quo” by affirmatively mandating action by the non-moving party. See Lewis v. General Electric Co., 37 F. Supp. 2d 55, 62 (D. Mass. 1999).
2. Irreparable harm cannot be assumed: On the facts of this case, Plaintiffs have not shown that there is irreparable harm to class members if they remain detained. It is not enough to speculate that continued detention will lead to widespread infection. The fact that the
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coronavirus is spreading rapidly in Massachusetts does not mean that it will do so within BCHOC. The fact that there have been no confirmed cases of COVID-19 until this month underscores this point. 20 of 26 detainees in ICE B have now been tested; only the original test taken at the hospital has been positive. See Declaration of Steven Souza, attached hereto as Exhibit 1, at ¶ 9. The other nineteen tests came back negative today. Id. Every step that can be taken to reduce the risk to the ICE B detainees has already been taken. They were quarantined and medically monitored. All but six are in single-person cells, while the six are in two-person cells.16 None of the 26 are in a general detainee population. Id.
Irreparable harm cannot be assumed from the fact of the pandemic alone. It must also be shown that the risk of infection is, essentially, unavoidable in detention and almost certainly avoidable in home confinement. The failure to fully evaluate these two situations with anything approaching an equal degree of rigor is addressed more fully below.
3. Plaintiffs are unlikely to succeed on the merits: Likelihood of success on the merits is a threshold issue. See United States v. Weikert, 504 F.3d 1, 5 (1st Cir.2007) (“[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.”) (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002)). Plaintiffs’ constitutional and statutory claims are unlikely to succeed on the merits.
This prong of the four-part test for preliminary injunctive relief is often assumed away by the courts. It should not be. As is argued below in detail, Plaintiffs do not have evidence that
16 It is worth noting that the inability of BCHOC to house all of the former ICE B detainees in single person cells is a direct consequence of their destroying Unit B.
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ICE or BCHOC are deliberately indifferent to their medical needs. A difference in opinion about the risk of infection does not come close to meeting the applicable precedents on this point.
4. The balance of the equities favors Defendants: It is well-settled that the public interest in enforcement of United States immigration laws is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”); see also Nken v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal marks omitted)).
Plaintiffs appear to assume that the risk of contracting COVID-19 outweighs all other considerations. The Court, in particular, has opined as to the unprecedented nature of the pandemic. See dkt. ## 64 & 86. But what must be weighed is the actual risk to detainees of detention at BCHOC (as opposed to some theoretical amalgamation of facilities imagined by Plaintiffs’ experts) in light of the extensive steps taken versus the risk of harm to the community of releasing persons with a known propensity for violence, drunk driving, and the like along with risk of flight and of not allowing ICE to conduct its business without undue interference. That is what must be balanced here. Defendants maintain that the balance favors no further releases of detainees.17
17 Even if the balance of the equities favors Plaintiffs, which Defendants deny, that alone is not sufficient for the Court to grant a preliminary injunction. Plaintiffs must still establish a likelihood of success on the legal merits of their Fifth Amendment claim, which they cannot do.
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5. The public will be adversely impacted by excessive releases of individuals: This point has been adequately argued, in both the prior briefs and through the submissions to
the Court for the daily lists of detainees being considered for bail. See note 9, supra. It is
essentially the same challenge the Court faces any time it is considering detention. How bad the
person is, and what the risk is that they will misbehave, possibly violently, if released is an
important consideration. Clearly, the criminal history presented to the Court for many of the as-
yet unreleased detainees as well as the recent riot and assault on Sheriff Hodgson establish that
there are real risks to the community of further releases. Moreover, the public has an interest in
ICE being allowed to do its job without undue interference in the manner, and in accordance
with the statutes, proscribed by Congress -- which includes mandatory detention for many of the
detainees pre-removal. As stated in Barco v. Price:
The public interest in enforcement of immigration laws is significant and so is the public interest in being protected from those who present a risk of danger. Releasing Plaintiffs would be contrary to public interest. Accordingly, the Court finds that Plaintiffs have failed to show that the injunction would not adversely affect the public interest.
Barco v. Price, -- F. Supp. 3d --, 2020 WL 2099890 (D.N.M. May 1, 2020)(involving an
immigration detainee’s claim for release owing to COVID-19), copy attached hereto as Exhibit 4.18
18 “There can be no doubt that, with respect to immigration and deportation, federal judicial power is singularly constrained. See U.S. Const. art. I, § 8, cl. 4; see also, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.”),” Mapp v. Reno, 241 F.3d 221, 227 (2d Cir. 2001).
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B. The Fifth Amendment Has Not Been Violated To evaluate the constitutionality of a pretrial detention condition under the Fifth Amendment, a district court must determine whether those conditions “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); see also Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 2473-74 (2015). Punishment may be shown through express intent or a restriction or condition that is not “reasonably related to a legitimate governmental objective.” Bell, 441 U.S. at 539. First, Plaintiffs do not present allegations or evidence to show Defendants have an “express intent” to punish Plaintiffs. Second, preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective. See Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). So is protecting the community and complying with congressional directives. Third, Plaintiffs’ current confinement does not appear excessive in relation to those objectives. Plaintiffs’ cited authority addresses the exposure of inmates or detainees to existing conditions within the facility at issue. See, e.g., Hutto v. Finney, 437 U.S. 678, 682-83 (1978) (mingling of inmates with infectious diseases with others); Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (same); Helling v. McKinney, 509 U.S. 25 at 33, 35, (1993) (placement of inmate with emphysema in a cell with a cellmate who smoked often). As set forth in the exhibits to Defendants’ prior filings, (dkt. #26 Exhibit 1; #35 Exhibits 1 & 2; # 83 Exhibits 1 & 2), BCHOC is not mingling inmates who are known to have infectious disease with uninfected individuals; in fact, they are taking steps to try to prevent that.
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The analysis of a Fifth Amendment claim for civil detainees often borrows on the more
extensive canon of Eighth Amendment prisoner cases. See, e.g., Swain v. Junior, __ F.3d ___
(11th Cir. May 5, 2020, case # 20-11622)(copy attached). In the Swain case, the Eleventh Circuit
stayed the district court’s preliminary injunction in an immigration detainee case very similar to
the present case. The Eleventh Circuit stated:
The defendants are likely to prevail on appeal because the district court likely committed errors of law in granting the preliminary injunction. In conducting its deliberate indifference inquiry, the district court incorrectly collapsed the subjective and objective components. The district court treated the increase in COVID-19 infections as proof that the defendants deliberately disregarded an intolerable risk. In doing so, it likely violated the admonition that resultant harm does not establish a liable state of mind. See Farmer, 511 U.S. at 844. The district also likely erred by treating Metro West’s inability to “achieve meaningful social distancing” as evincing a reckless state of mind. Although the district court acknowledged that social distancing was “impossible” and “cannot be achieved absent an additional reduction in Metro West’s population or some other measure to achieve meaningful social distancing,” it concluded that this failure made it likely that the plaintiffs would establish the subjective component of their claim. But the inability to take a positive action likely does not constitute “a state of mind more blameworthy than negligence.” Id. at 835.
The defendants are also likely to succeed on appeal because the plaintiffs offered little evidence to suggest that the defendants were deliberately indifferent. Indeed, the evidence supports that the defendants are taking the risk of COVID-19 seriously.
Swain, at 10-11 (copy attached hereto as Exhibit 3). Defendants submit that taking the same path
as the district court did in the Southern District of Florida, which the Eleventh Circuit found
problematic, would be a mistake. See the Court’s Memorandum and Order, dkt. # 54.
First Circuit precedent is in accord with the Eleventh Circuit’s opinion in Swain. “[P]rison
officials ... cannot be deliberately indifferent if they responded reasonably to the risk, even if the
harm ultimately was not avoided,” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 503-04 (1st
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Cir. 2011); Burrell v. Hampshire Cty., 307 F.3d 1, 8 (1st Cir. 2002)(citing Farmer, 511 U.S. at
844). If under the totality of the circumstances as understood by prison officials at the time, the
defendants took reasonable measures to avert potential harm, then they cannot be found to have
been deliberately indifferent. Id. Such is the case here: BCHOC has taken extensive precautions
to minimize the risk of a coronavirus outbreak. As stated in Sacal-Michal:
The Court recognizes that the COVID-19 pandemic presents an extraordinary and unique public-health risk to society, as evidenced by the unprecedented protective measures that local, state, and national governmental authorities have implemented to stem the spread of the virus. And it is possible that despite ICE’s best efforts, Sacal may be exposed and contract the virus. Moreover, Sacal’s age and medical condition render him particularly vulnerable to serious complications from the virus. But the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release. Sacal has not demonstrated his likelihood of proving that ICE has failed to take reasonable measures to guarantee his safety.
Sacal-Michal v. Longoria, (S.D. Tx. March 27, 2020)(copy previously submitted).
Plaintiffs cite Helling v. McKinney, 509 U.S. 25, 36 (1993), for the proposition that
involuntary exposure of a prison inmate to a hazard (in that case environmental tobacco smoke or
“ETS”) can form the basis of a claim for relief under the Eighth Amendment), but that case
required deliberate indifference to the health risk, which has not remotely been shown here. As
the Supreme Court said in McKinney:
[S]uch claims require proof of a subjective component, and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner's medical needs, the standard for that state of mind is the “deliberate indifference” standard of Estelle v. Gamble, 429 U.S. 97 (1976).
On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals.
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Id.19 At bottom, Plaintiffs in this case cannot establish the subjective factor of deliberate
indifference regardless of how the Court weighs the objective factors. Deliberate indifference
“defines a narrow band of conduct in this setting.” Feeney v. Corr. Med. Servs., Inc., 464 F.3d
158, 162 (1st Cir. 2006)(affirming this session’s grant of summary judgment to defendants). The
medical care provided must have been “so inadequate as to shock the conscience.” Id. (quoting
Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir. 1991)).20 See also Whitley v. Albers, 475 U.S.
312, 319 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.”); Battista v.
Clarke, 645 F.3d 449, 454 (1st Cir.2011) (“[S]o long as the balancing judgments are within the
realm of reason and made in good faith, the officials' actions are not ‘deliberate
indifference.’”).21
19 Even if Plaintiffs could show a Fifth or Eighth Amendment violation, Plaintiffs provide no authority under which such a violation would justify immediate release, as opposed to injunctive relief that would leave Plaintiffs detained while ameliorating any alleged violative conditions within the facility. See, e.g., Seifert v. Spaulding, No. 18-11600-MGM, 2018 WL 7285967, at *2 (D. Mass. Sept. 11, 2018), report and recommendation adopted, No. CV 1811600-MGM, 2019 WL 538253 (D. Mass. Feb. 11, 2019); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005); Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990).
20 “Immigration detainees’ constitutional claims status is akin to that of pretrial detainees. Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment; however, the standard to be applied is the same as that used in Eight Amendment cases.” Under the Eighth Amendment standard, a detainee must prove that defendants’ withholding of essential health care amounted to ‘deliberate indifference to a serious medical need.’ Mere substandard care, malpractice, negligence, inadvertent failure to provide care, and disagreement as to the appropriate course of treatment is insufficient to prove a constitutional violation.” Doan v. Bergeron, No. 15-CV-11725-IT, 2016 WL 5346935, at *4 (D. Mass. Sept. 23, 2016) citing Burrell v. Hampshire Ctv., 307 F.3d 1, 7 (1st Cir. 2002) and Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007)) (other citations and quotation marks omitted).
21 In language that is applicable to this case, the court in Sacal-Michal stated that Plaintiff was unlikely to prove that ICE acted with deliberate indifference with respect to Sacal’s health. “In other words, Sacal has not demonstrated that the conditions in which ICE maintains him in
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C. Habeas Corpus Relief Is Extraordinary and Circumscribed
1. Conditions of confinement are not cognizable in a habeas petition:
Plaintiffs are seeking to address conditions of their confinement, not just the fact of or duration
thereof: “Plaintiffs and members of the proposed class seek a writ of habeas corpus to remedy
their unconstitutional detention in life-threatening conditions at Bristol County Immigration
Detention Facilities.” Complaint, ¶ 93 (emphasis supplied).
In a thoughtful opinion, Magistrate Judge Page Kelley reviewed this issue:
Jenkins appears to be challenging the conditions of his confinement. This claim should be brought through a civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that an individual aggrieved by a federal official’s violation of his constitutional rights can bring an action for monetary relief). See Kane v. Winn, 319 F. Supp. 2d 162, 213 (D. Mass. 2004) (“Although a habeas corpus petition is the appropriate means to challenge the fact or duration of incarceration, actions challenging the conditions of confinement reside more in the heartland of civil actions under 42 U.S.C. § 1983 (for state prisoners), Bivens, 403 U.S. 388, 91 S. Ct. 1999 (for federal prisoners), or some other nonhabeas doctrine or statute.”). … Here, petitioner’s complaints about the dangers he is facing do not challenge the length of his confinement.
Jenkins v. Spaulding, 2019 WL 1228093 (D. Mass. Feb. 22, 2020), Civil Action No. 19-10078-
MPK.22
custody arise to the level of a constitutional violation. In addition, Sacal has not demonstrated a substantial likelihood of success on his fundamental argument—i.e., that the detention facility is incapable of protecting him from contracting COVID-19 or providing appropriate medical attention should he be infected. For these propositions, Sacal offers only conclusory arguments based on general articles regarding the highly-contagious nature of COVID-19 and its impact on the elderly and individuals with certain underlying medical conditions.”
22 The First Circuit has said that where a prisoner seeks relief from conditions of confinement that would result in a reduction of his sentence, he should bring a habeas claim, and
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And, as this Court has stated in Kane v. Winn, 319 F. Supp. 2d 162, 213-15 (D. Mass.
2004):
Although a habeas corpus petition is the appropriate means to challenge the “fact or duration” of incarceration, actions challenging the conditions of confinement reside more in the heartland of civil actions under 42 U.S.C. § 1983 (for state prisoners), Bivens, 403 U.S. 388, 91 S.Ct. 1999 (for federal prisoners), or some other non-habeas doctrine or statute. See Heck v. Humphrey, 512 U.S. 477, 481–83, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488–90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Various courts in this Circuit and elsewhere have dismissed habeas petitions (or individual claims contained therein) that challenged conditions of confinement rather than the fact or duration of confinement. See, e.g., Melham v. Farquharson, Civ. A. No. 03–10721–DPW, 2003 WL 21397987, at *1 n. 1 (D. Mass. June 17, 2003) (Woodlock, J.) (declining to address a habeas petitioner's claims insofar as they related to conditions of confinement); Do Vale v. I.N.S., Nos. 01– 216–ML, 01–507–ML, 2002 WL 1455347, at *9 (D.R.I. June 25, 2002) (dismissing such claims); Barnes v. I.N.S., Civ. No. 01–48– PC, 2001 WL 1006077, at *7 (D.Me. Aug.30, 2001) (recommending a similar disposition); Kamara v. Farquharson, 2 F.Supp.2d 81, 89 (D.Mass.1998) (Saris, J.) (dismissing such claims).
For most conditions of confinement claims, however, and particularly for those involving inadequate medical treatment, courts usually hold that habeas relief is not available. See, e.g., Lee v. Winston, 717 F.2d 888, 893 (4th Cir.1983); United States v. Sisneros, 599 F.2d 946, 947 (10th Cir.1979); Crawford v. Bell, 599 F.2d 890, 891–92 (9th Cir.1979). But cf. Albers v. Ralston, 665 F.2d 812, 815 (8th Cir.1981) (noting that a habeas action will lie to challenge conditions of confinement where substantial constitutional violations were alleged).
Id.
where he seeks relief from conditions of confinement that would not reduce his sentence, he should bring a civil rights claim. See Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873-74 (1st Cir. 2010).
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To similar effect is a decision handed down last Friday, Barco v. Price, _ F. Supp. 3d __
2020 WL 2099890 (D.N.M. May 1, 2020)(Exhibit 4 hereto). In Barco, plaintiffs made the same
challenges to their immigration confinement based on the threat of COVID-19 as have been
made in this case. The district court determined that plaintiffs were unlikely to prevail on the
merits of their preliminary injunction motion because “the Court finds that Plaintiffs are
challenging the conditions of their detention, as opposed to its fact or duration, which is not
appropriate under 28 U.S.C. § 2241.” Id. Moreover, the court found that plaintiffs had not
demonstrated that they had conditions that put them at a higher risk or that the conditions of
confinement were not rationally related to the legitimate purpose of preventing aliens from
absconding and ensuring that they appear for removal proceedings, citing Jennings v. Rodriguez,
138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 520-22 (2003); and Zadvydas, 533
U.S. at 690–91.
Regarding the irreparable harm prong of the preliminary injunction test, the district court
stated:
In essence, Plaintiffs are asking the Court to order their immediate release from Otero based on the possibility that they may suffer irreparable harm from COVID-19 should they contract it while detained there. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. Accordingly, the Court finds that Plaintiffs have not shown that they will suffer irreparable harm unless the injunction is issued.
Even if the Court were to order Plaintiffs’ immediate release, the Court cannot make the finding that they would not face the risk of contracting COVID-19 outside of Otero, when comparing the United States 1,031,659 COVID-19 cases to Otero County’s 5 COVID-19 cases.
Id. 21

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In Sacal-Michal v. Longoria, (S.D. Tx. March 27, 2020)(copy previously submitted), the
court rejected a civil immigration detainee’s request to be released in light of his health issues
and COVID-19. The court noted that a habeas petition can address the fact or duration of
detention, but that “allegations that challenge rules, customs, and procedures affecting conditions
of confinement are properly brought in civil rights actions.” Id., citing Schipke v. Van Buren,
239 F. App'x 85, 85–86 (5th Cir. 2007). The court concluded that plaintiff was challenging the conditions of his confinement.23
Sacal alleges that Respondents cannot prevent the COVID-19 virus from infecting the detention center where he is detained. … He contends that he will be exposed to COVID-19 via the medical staff or other detainees. And he alleges that because of his failing health, “[c]ontinued detention . . . presents a clear and present danger to his fundamental right to life.” Sacal effectively alleges that ICE’s inability to isolate him successfully, the movement of individuals within the detention facility, and the absence of adequate testing to identify carriers of the virus, all render it a certainty that he will contract the illness if maintained in custody. Those factors focus on the conditions of his confinement. A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.
Id. A detainee can establish a constitutional violation based on inadequate conditions of his
confinement. But to do so, he must demonstrate that the officials acted with
deliberate indifference to his medical needs or his safety. See section B above.
23 Accord Muhammad v. Close, 540 U.S. 749, 750 (2004) “Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; requests for relief turning on circumstances of confinement may be presented in a § 1983 action,” cited in Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016).
22

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Presently, there is no legal basis to justify an alien’s release based solely on COVID-19.
See Dawson v. Asher, 2020 WL 1304557 (W.D. Wash. March 19, 2020). The Dawson court
ruled that appropriate relief would be to order the agency to ameliorate any alleged violative
conditions within the facility.
Outside of the immigration arena, courts have found that the threat of COVID-19 is not
sufficient to justify release. For example, the court in U.S. v. Jones found that health risks are
not the sole determinant of whether detention is appropriate, and every decision must include an
individualized assessment of the existing standards for release eligibility. See U.S. v. Jones, 2020 WL 1323109, (D. Md. March 20, 2020).24
In United States v. Martin, United States District Court, D. Maryland, Southern Division,
March 17, 2020 (2020 WL 1274857), the court stated:
Finally, while the record confirms that Martin has disclosed that he suffers from asthma, high blood pressure, and diabetes, this alone is insufficient to rebut the proffer by the Government that the correctional and medical staff at CDC are implementing precautionary and monitoring practices sufficient to protect detainees from exposure to the COVID-19 virus. For all the above reasons, I reach the same conclusion as Chief Magistrate Judge Gesner. Martin has failed to rebut the presumption of detention, and the Government has established by clear and convincing evidence that he must continue to be detained for the protection of the community. Therefore, his appeal is DENIED.
In United States of America v. Teon Jefferson, United States District Court, D. Md.
March 23, 2020 (2020 WL 1332011), the court rejected the plaintiff’s contention that his asthma
24 However, a separate court ruled that COVID-19 could establish changed circumstance to permit a redetermination of a defendant’s bail based on new flight risk factors arising out of COVID-19. See U.S. v. Stephens, 2020 --- F. Supp.3d.---, 2020 WL 1295155 (S.D.N.Y. March 19, 2020). This is, of course, very different than court-ordered release.
23

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constituted an unacceptable health risk that should result in release to home confinement with
location monitoring. The court noted that no third-party custodian had been identified and that
location monitoring is a particularly scarce. resource under the current conditions. Id.
In another COVID-19 release case, United States v. Hamilton, (E.D.N.Y. March 20,
2020), 2020 WL 1323036, the court rejected the plaintiff’s argument that in light of his
advanced age and medical conditions, the ongoing COVID-19 pandemic constitutes “another
compelling reason” to permit his temporary release under 18 U.S.C. 3142(i)(4). According to
the court:
While the court is mindful of Mr. Hamilton’s concerns, it does not believe that the COVID-19 outbreak—at this point in time— constitutes a sufficiently compelling reason to justify release under the circumstances of this case. Mr. Hamilton does appear to fall within a higher-risk cohort should he contract COVID-19; however, he does not suffer from any pre-existing respiratory issues and his medical conditions appear to have been well managed over the course of the past fourteen months of incarceration. Further, and perhaps most importantly, as of this writing, there have been no reported incidents of COVID-19 within MDC, and the Bureau of Prisons is taking system-wide precautions to mitigate the possibility of infection within its facilities. As such, given the risks that Mr. Hamilton’s release would pose, the court concludes that the possibility of an outbreak at MDC is not a “compelling circumstance” justifying his release.
Id.
United States v. Gileno, (D. Conn. March 19, 2020), 2020 WL 1307108, is to similar
effect: “The Court takes judicial notice of the fact that public health recommendations are
rapidly changing. But at this time the Court cannot assume that the Bureau of Prisons will be
unable to manage the outbreak or adequately treat Mr. Gileno should it emerge at his correctional
facility while he is still incarcerated.” Id. Accord Nikolic v. Decker, (S.D.N.Y. March 19, 2020),
24

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2020 WL 1304398 (in a case not subject to the restrictions of 8 U.S.C. § 1252(f), court noted that a federal court should grant bail to a habeas petitioner only in unusual cases).
2. Class-wide relief remains inappropriate: Although the Court has certified the class of all immigration detainees who were held at BCHOC at the outset of the litigation, the Defendants believe that the Court should reconsider its decision now that it has experienced in detail just how varied the situation is for every detainee. There is a lack of commonality among the class members such that the Court has had to make individual determinations. Most importantly, there is no class-wide relief available unless the Court is willing to order release of all detainees – which it should not do in light of the violent, criminal propensity of many class members.
In addition to the obvious differences in the criminal records of the detainees, the individuals also vary greatly on a number of other factors. For example, risk of flight, medical conditions, situations for home release, and many other potentially relevant variables. Thus, there is no commonality of the purported class members which is required for class certification. Walker v. Osterman Propane LLC, 411 F. Supp. 3d 100, 108 (D. Mass. 2019).
Although the Court has decided otherwise for purposes of class certification, Defendants maintain that the Court lacks jurisdiction to enjoin the normal operation of 8 U.S.C. § 1226(c).25 The Supreme Court has instructed that the provision is a bar on “classwide injunctive relief against the operation of §§ 1221-1231” with a carve out that applies to “individual cases.” Reno
25 Defendants recognize that district courts have authority to issue a writ of habeas corpus to address constitutional wrongs in individual cases. That is not what the Court has proposed, and, more importantly, it is not what Plaintiffs have sought. It is not for the Court to recast Plaintiffs’ theory of recovery (i.e., the broadest class possible) nor the legal basis upon which it stands.
25

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v. Am. Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999) (emphasis added).26 While this Court labels this as dicta, see dkt. # 64 at 15-16, in Jennings v. Rodriguez, the Court indicated that section 1252(f)(1) would apply to constitutional claims like those raised by Plaintiffs because they seek to enjoin the ordinary application of section 1226(c) as unconstitutional. See No. 15-1204, --- U.S. ---, 138 S. Ct. 830, 852 (recognizing that the Ninth Circuit had found that section 1252(f)(1) did not bar its jurisdiction over the statutory claims but concluding that “[t]his reasoning does not seem to apply to an order granting relief on constitutional grounds”). This provision is entitled “limit on injunctive relief,” and it unquestionably prohibits class-based injunctions while preserving individual access to a habeas writ and all forms of equitable relief.27 The Sixth Circuit recently echoed this sentiment, stating that, while “[i]t is true that ‘declaratory relief will not always be the functional equivalent of injunctive relief,’ … in this case, it is the functional equivalent.” Hamama v. Adducci, 912 F.3d 869, 880 n.8 (6th Cir. 2018) (citing Alli v. Decker, 650 F.3d 1007, 1014 (3d Cir. 2011)). “The practical effect of a grant of declaratory relief as to Petitioners’ detention would be a class-wide injunction against the detention provisions, which is barred by § 1252(f)(1).” Id.
The Sixth Circuit also stated, “[n]evertheless, we find that 8 U.S.C. § 1252(f)(1) bars the district court from entering class-wide injunctive relief for the detention-based claims. In our
26 In Hamama, the Sixth Circuit rejected petitioners’ argument that this exception means that § 1252(f)(1) did not apply to class members in immigration proceedings. Hamama, 912 F.3d 869, 877-78 (6th Cir. 2018). 27 Notably, Plaintiffs’ motion seeks injunctive relief, not declaratory relief, so even assuming § 1252(f)(1) would not bar the declaratory relief they seek in their complaint, it still bars the relief at issue presently before this Court. See TRO Mot. dkt. # 11 (requesting “release of plaintiffs and similarly situated detainees,” “implementation” of guidance and protocols, “ceasing placing new detainees” in the facilities).
26

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view, Reno [525 U.S. 471] unambiguously strips federal courts of jurisdiction to enter class-wide
injunctive relief for the detention-based claims.” Id. The Sixth Circuit continued:
Second, the claim that “the district court was not enjoining or restraining the statutes” is implausible on its face. The district court, among other things, ordered release of detainees held “for six months or more, unless a bond hearing for any such detainee is conducted”; created out of thin air a requirement for bond hearings that does not exist in the statute; and adopted new standards that the government must meet at the bond hearings (“shall release ... unless the immigration judge finds, by clear and convincing evidence, that the detainee is either a flight risk or a public safety risk”). If these limitations on what the government can and cannot do under the removal and detention provisions are not “restraints,” it is not at all clear what would qualify as a restraint. The district court did not have jurisdiction to enter class-wide injunctive relief on Petitioners' detention-based claims.
Id., at 879-880.
3. Plaintiffs Lack Article III Standing
Although the Court has previously rejected Defendants’ argument on standing in the
context of class certification, Defendants believe it should be revisited in the preliminary
injunction context. “Standing to sue is a doctrine rooted in the traditional understanding of a
case or controversy. The doctrine developed in our case law to ensure that federal courts do not
exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016). The “irreducible constitutional minimum of standing” contains three
requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must
have suffered an “injury in fact”—an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id.
Second, the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and
not . . . the result [of] the independent action of some third party not before the Court.” Id. Third,
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it must be “likely,” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision.” Id. at 560-61 (internal citations omitted). Plaintiffs do not raise a cognizable injury, the claimed injury is not caused by Defendants nor is the alleged injury redressable by this Court. Put another way, the risk of infection is not a result of what Defendants have done, are doing or have failed to do. The risk is a consequence of a world-wide pandemic. In addition, whether Plaintiffs will contract COVID-19 is entirely conjectural. As noted, there has been only one confirmed case at BCHOC in the last six weeks. Bristol County has expended extensive resources and efforts to address the very issues that Plaintiffs have identified. IV. Plaintiffs’ False Dichotomy
A. Release of All Detainees Is Not Required Plaintiffs have steadfastly refused to suggest any level of detainee reduction that would be safe. Nor have they offered suggestions as to what further steps ought to be taken at BCHOC to reduce their risk of infection. Indeed, although they are highly critical of what steps have been taken, see Memorandum in Support of Preliminary Injunction motion at pp. 14-16, the only suggestions they make is (i) release all detainees; and (ii) (implied) conduct more testing. Id. Finally, they have opposed transfers of BCHOC detainees to other facilities. This reinforces that their goal all along has been to secure release without regard to any other considerations such as the safety of the community. Even now, with most or all of Unit B having engaged in wanton destruction of the facility as well as violence against Sheriff Hodgson, Plaintiffs continue to seek immediate release of detainees without any consideration of what unit the detainees are held in, what the living arrangements are and what the current detainee population is.28
28 As just one of a multitude of examples of Plaintiffs’ approach that complete release is the only solution, their expert Keller assumes, without ever having visited BCHOC, that there is nothing other than release that could reduce the risk of infection. This Court has indicated that
28

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It is important to review what we are trying to achieve. What the parties, the Court and the Defendants are seeking is to minimize is the risk of the detainees (and, presumably, BCHOC staff and detainees’ family) getting infected with COVID-19. There are a number of ways in which that can be done. None of the possible steps is exclusive. There is no single right way to do this and there is no way to achieve absolute protection from the virus. The CDC Guidance for correctional institutions does not suggest that release, or even a six-foot social distancing, is the only option to increase facility safety. See Ex. 2, passim.
Plaintiffs have painted an unrealistic, black and white picture in which the only effective means of protection is the release of all detainees.29 This is flawed in both logic and pragmatics. First, there is no guarantee that the detainees will not encounter COVID-19 upon release. See section 3 infra. Second, the risk of contracting COVID-19 if class members remain detained is also not certain. In the six weeks since this case was filed, only one case of coronavirus has been confirmed in the detainee or inmate population. That stands in stark contrast to the doomsday predictions of Plaintiffs and their experts, and to the spread of the virus in the community at large.
BCHOC is not like the world at large. This is because BCHOC is able to control who comes into its facility, where they go, and what steps are taken to screen such individuals. Social
population reduction may be achieved by means other than release: “Nor does it matter how the density of Detainees is reduced. Transfer to less crowded facility, deportation, release on bond, or simply declining to contest lawful residence -- any of these methods would effectively minimize the concentration of people in the facility. This affords the government greater flexibility and minimizes the differences among the various Detainees.” Opinion, dkt. # 64 at p. 23.
29 “The only way to effectively inhibit the spread of COVID-19 and to protect Plaintiffs and others is to immediately release Plaintiffs.” Complaint, ¶ 30.
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interaction, the primary focus of the social distancing recommendations, is much more limited at BCHOC than in the outside world. Perhaps more importantly, there is virtually no information available regarding the conditions where the detainees who have been released are living, or where the others would live. Thus, it is far too simple to contrast the exaggerated danger of BCHOC with the equally exaggerated safety of release. So it is by no means clear that release is a panacea.30
B. Plaintiffs Exaggerate Conditions in BCHOC Plaintiffs have overstated the risk of COVID-19 infection within BCHOC. In the Complaint at ¶ 3, they claimed “that the dangerous conditions in the Bristol County Immigration Detention Facilities where Plaintiffs are confined will imminently result in the uncontrolled spread of COVID-19 and the likely death of many detainees including Plaintiffs.” This claim was made on March 27, 2020, almost six weeks ago. And there is a single confirmed case as of now. That is hardly an imminent spread as a consequence of “confinement conditions [that] are a tinderbox, that once sparked will engulf the facility.” Id., ¶ 29. Moreover, Plaintiffs have made numerous claims that are simply untrue. This is not just a “he said/she said” situation. There are real facts, and the Court must determine them. For example, the claims that the detainees are “without adequate soap, toilet paper, and other daily necessities” (Complaint, ¶ 3; ¶ 70); and that BCHOC “admit[s] new detainees without COVID-
30 Plaintiffs say “Most people who develop serious illness will need advanced support. This level of supportive care requires highly specialized equipment that is in limited supply, even in non-detention settings, and an entire team of dedicated medical care providers.” Complaint, ¶ 56. There is no evidence that any detainee has access to such care outside BCHOC, and, indeed there is good reason to think it is not as the immigrant population is generally uninsured. A detainee requiring advanced care would be transported from BCHOC and ICE would pay for his or her care; see generally affidavit of Sheriff Hodgson submitted with the Opposition to the TRO Motion, dkt. # 26, Ex. 1.
30

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19 testing or screening [and] den[ies] access to testing and medical care for Plaintiffs and other detainees” (id.), are absolutely wrong. Throughout the litigation, and before, there was always adequate soap and toilet paper. Medical care and testing, including screening, has been continuously available. See, e.g., Declarations of Dr. Nicholas Rencricca and Debra Jezard, dkt. #35.
There have also been cleaning supplies on hand including disinfectant; see Complaint, ¶ 21. Defendants are not “introducing daily new detainees in with the general population without any mandatory quarantine period.” Complaint, ¶ 26; see, e.g. dkts. 87 & 109. And the assertion that “Plaintiffs are unaware of any meaningful safety measures enacted by Defendants since the inception of this crisis,” Complaint, ¶ 28, is clearly a statement of how unfamiliar Plaintiffs are with the actual management of BCHOC.
Two additional claims made in the Complaint are worth noting: The [ICE] protocols also do not address: imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues. Further, there is substantial evidence that ICE’s COVID-19 protocols are not being followed in detention centers throughout the country, including Bristol County Immigration Detention Facilities.
Complaint, ¶¶ 76 & 77. There has been no evidence developed in the case to date that there is a shortage of medical supplies at BCHOC or that the staff and detainees have not been educated about the risks of the virus. The opposite has been shown in Defendants’ filings, including the declarations and exhibits thereto. Nor is there any evidence that BCHOC has not been following ICE’s COVID-19 guidance. Moreover, much of expert opinion offered by Plaintiffs is by persons who have either never been to BCHOC or who only had limited entry to BCHOC, and
31

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who therefore make generalized statements about correctional facilities in the abstract and not in
particular about BCHOC. See, e.g., Declarations of Dr. Keller and Gartland.
C. Plaintiffs Understate the Risk Outside of BCHOC
“No one and no place is immune from COVID-19 infection, illness, and death,”
Complaint, ¶ 14. This applies equally to the locations to which detainees have been, or will be,
released—about which we know virtually nothing. An article cited by Plaintiffs’ expert Keller
(dkt. 94-1) states:
In addition, our findings suggest that home isolation of persons with suspected COVID-19 might not be a good control strategy. Family members usually do not have personal protective equipment and lack professional training, which easily leads to familial cluster infections. During the outbreak, the government of China strove to the fullest extent possible to isolate all patients with suspected COVID-19 by actions such as constructing mobile cabin hospitals in Wuhan, which ensured that all patients with suspected disease were cared for by professional medical staff and that virus transmission was effectively cut off. As of the end of March, the SARS-COV-2 epidemic in China had been well controlled.31
Here is what Plaintiffs have argued is relevant to a decision regarding the risk of
continued detention:
1. Who is coming into the ICE detention facility; 2. What screening has been done of these people: 3. What are the dimensions of all the spaces in which the detainees are housed; 4. How many people live in the facility; 5. What cleaning supplies are available; 6. How often is the facility cleaned and with what substances;
31 Zhen-Dong Guo, et al. “Aerosol and Surface Distribution of Severe Acute Respiratory Syndrome Coronavirus 2 in Hospital Wards, Wuhan, China, 2020” (https://wwwnc.cdc.gov/ eid/article/26/7/20-0885_article, last accessed 5/4/20)(emphasis supplied)(citing Rui Huang, et al., A family cluster of SARS-CoV-2 infection involving 11 patients in Nanjing, China, published in The Lancet Infectious Diseases, vol.20, issue 5,May 2020, Pages 534-535 (available at https://www.sciencedirect. com/science/article/pii/S147330992030147X?via%3Dihub, last accessed 5/4/20).
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7. Who is preparing meals and what steps are taken to ensure there is no contamination of the food, from when it is brought into the facility to when it is served; 8. What is the sleeping arrangement for each person; 9. How wide are the halls and spaces through which residents must pass; 10. What testing has been done of the residents for the virus; 11. What are the protocols for preventing the virus’s spread; 12. Has anyone living there tested positive for the virus; 13. Has anyone that any of the residents been in contact with tested positive; and 14 What was done if anyone tested positive?
The list could be much longer based on the arguments made by Plaintiffs, the discovery
they have promulgated, the questions emailed to defense counsel, and the topics raised at the
three depositions. Yet, when Defendants asked essentially the same questions of Plaintiffs, they
refused to answer.32 In response to interrogatories seeking information regarding the conditions
outside of BCHOC, plaintiffs said:
This litigation concerns whether the practices and conditions of confinement at the Bristol County House of Correction and Facilities (BCHOC) violate Petitioners’ constitutional and statutory rights. The information requested in Respondent’s Interrogatory No. 1 exclusively pertains to details about the lives and livelihoods of class members who are no longer in custody at BCHOC and their co-habitants. The requested information bears no relationship to whether the practices or conditions at BCHOC violate Plaintiff class members’ constitutional or statutory rights nor any applicable defense to those allegations.
In response to an interrogatory seeking information as to whether any released detainee
has experienced flu-like symptoms or been tested for COVID-19 after release, Plaintiffs refused
to answer. When asked if any family member living with the released detainee had experienced
32 Defendants are filing a motion to compel compliance with their discovery requests. In the motion, Defendants will explain how lead counsel for Plaintiffs assured defense counsel that responses were coming, then waited until just before midnight on Monday, May 4, 2020 to serve responses that contained no responsive information whatsoever to the interrogatories and only documents that had been previously filed with the Court in response to the document requests. This made it effectively impossible for defense counsel to file a motion to compel and get responses on a timely basis for the May 7, 2020 hearing.
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symptoms or been tested, Plaintiffs stonewalled. When asked if anyone in a household in which Plaintiffs proposed an inmate be released to had tested positive or exhibited symptoms, Plaintiffs again objected and provided no information. If the risk of infection is worth considering at BCHOC, then the relative risk of infection upon release must also be considered. Absent information regarding the conditions in the locations where the released detainees are to live, Plaintiffs are asking the Court to assume that the conditions are safer. That is insufficient to meet their burden of proof to show that the benefits of the relief sought outweigh the harm (not to mention that it does not establish deliberate indifference as required).
For example, the Court has no idea whether one person or twenty people live at any proposed or existing release location. The Court does not know how many people there go out and work everyday. The Court has no idea about what anyone living there is doing to prevent infection. The Court is in the dark as to whether anyone living there has tested positive for COVID-19 or exhibited symptoms. As Plaintiffs have repeatedly asserted, someone can be infected and be asymptomatic, so the protocols for maintaining social distance and hygiene are essential. But we know absolutely nothing about that for any of the released detainees or the remaining detainees for whom release is sought. And that is just a partial list of the facts that Plaintiffs assert are key for the Court’s determination of the safety of detention but which they claim are wholly irrelevant to a release decision.
It is true that home quarantined individuals have the potential to exercise greater control over who they come into contact with if they choose to comply with Governor Baker’s recommendation that they stay at home. This is not, at least not yet, a mandatory order. And the Court’s order that the released detainees must stay at home only applies to the detainees and not to anyone else living in the residence. Even families that chose to comply typically have
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someone going out to buy food, and many households have one or more people that are working outside the home still. In addition, it is likely that some families of released detainees will have fewer resources and diminished access to social services as a consequence of the pandemic. This puts additional economic pressure on them to continue working outside the home.
As stated above, Massachusetts has experienced an almost eight-fold increase in cases. The Court and the government have very little means of knowing, much less controlling, the extent to which the detainees and their families practice appropriate precautions against the virus. While the Court has ordered house arrest, the Court neither has authority over, nor insight into, the behavior of those around the detainees. Thus, the risk of the detainees contracting COVID-19 upon release is far from zero.
CONCLUSION While the current pandemic may be unprecedented in our lifetimes, courts have dealt with challenges to the conditions of detention before, and there is a well-established legal path. That path requires Plaintiffs to prove, among other things, a likelihood of establishing that Defendants have been deliberately indifferent to the risk of infection and detainees’ medical needs. They have not, and cannot, meet their burden. This Court must not let bad facts lead it to bad law. The Court has reduced the immigration detainee population density at the Bristol County House of Corrections through individualized bond determinations. No further relief is necessary nor warranted under the law.
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May 6, 2020

Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: May 6, 2020

/s/ Thomas E. Kanwit

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO; )

JULIO CESAR MEDEIROS NEVES; and

)

ALL THOSE SIMILARLY SITUATED,

)

)

Petitioners,

)

)

C.A. No. 20-10617-WGY

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent.

)

__________________________________________)

THIRD DECLARATION OF STEVEN SOUZA

I, Steven Souza, do hereby depose under oath and with personal knowledge, and from

information provided to me by individuals with personal knowledge, the following:

1. As this Court is aware, there was a disturbance in Unit B of the ICE immigration

detainee building at the Bristol County House of Corrections (“BCHOC”) on Friday, May 1,

2020. Although the investigation of this incident is ongoing, what occurred amounted to a prison

riot. During the course of the riot, detainees ripped sinks off the walls and smashed them. They

broke windows. They barricaded doors and refused to admit prison personnel. They smashed

holes in the walls. They rendered Unit B uninhabitable.

2. This incident purportedly arose when one of the detainees reported flu-like

symptoms and was told he would be taken to the medical unit on the Main Campus for testing

and then placed in isolation, in accordance with the facility’s COVID-19 medical guidance. An

additional group of detainees, nine in total, also claimed symptoms and they were also told that

they would be taken out of the unit for testing and isolation. They refused.

3. Staff contacted Sheriff Hodgson to inform him of the situation. Sheriff Hodgson

Case 1:20-cv-10617-WGY Document 164-1 Filed 05/06/20 Page 2 of 3
entered Unit B to try to talk the detainees down from their confrontational stance, and one of the detainees threw a chair at the Sheriff striking his arm and injuring him. BCHOC staff eventually regained control of the Unit with the involvement of the Special Operations Unit of Bristol County Sheriff’s Office.
4. One of the detainees (who had complained of flu-like symptoms prior to the incident) claimed his shoulder was hurt during the riot. This person, and two other detainees, were separately taken to a local hospital. Neither of the other two had physical injuries and all three were released from medical care after observation for several hours. The detainee that had complained of flu-like symptoms (the one who complained of his shoulder) while at BCHOC before the riot had his temperature taken at the hospital. It was 99 degrees, so he was given a test for coronavirus. The test came back positive yesterday.
5. Prior to receiving this information, all of Unit B was placed in isolation, one detainee per cell, as a consequence of the riot, the uninhabitable condition of Unit B, and as a precaution since 10 of the 26 Unit B members claimed two COVID-like symptoms. The individual who tested positive had been in Unit B since late November. 20 (out of 26 total) detainees who were in Unit B have now been tested (including the one tested at the hospital), and six detainees have refused to be tested. Of those who were tested, 19 tested negative and one has tested positive (the one tested at the hospital).
6. In addition, ICE has been asked whether there have been releases from Unit B in the last two weeks or so and, if so, where those people are located and who they are. The detainee who tested positive is back at BCHOC but in a cell by himself .
7. Because of the extensive damage to Unit B, the detainees who had been housed there will not be able to be returned to that unit for some time. Of these 26 detainees, 16 are
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housed in Unit EE; 4 in Unit ED; and 6 in Unit EC. All are in single cells, with their own toilets and sinks. They were all in quarantine as a result of our COVID-19 protocol to isolate individuals who are complaining of COVID-19 symptoms and those who may have been exposed to them; while the nineteen for whom the test was negative do not need to be quarantined for COVID-19, they will continue to be separated from the general detainee population for security reasons.
8. In another troubling incident, on May 5, 2020, detainees in Unit 2 East spread human feces on the walls in the unit, and intentionally clogged the toilets with toilet paper causing them to overflow and pour toilet water on the bathroom floor. It appears that these incidents are a result of the on-going litigation as BCHOC has not had any incidents with detainees before the litigation. This may cause some limited additional cell re-assignments.
9. Including the 26 detainees mentioned above, BCHOC has 82 detainees at its facility. Of the remaining 56 non-Unit B detainees, 12 are housed in Unit A, 38 are housed in 2 East, 5 are in Unit EB, and 1 is housed in Unit EA.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS SIXTH_____ DAY OF MAY, 2020.
/s/ Steven Souza STEVEN SOUZA, Superintendent Bristol County House of Corrections
____________________________________
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Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 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 following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

cdc.gov/coronavirus

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include 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 PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
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Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

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Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
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Case 1:20-cv-10617-WGY Document 164-3 Filed 05/06/20 Page 1 of 20 Case: 20-11622 Date Filed: 05/05/2020 Page: 1 of 20
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT _________________________ No. 20-11622-C _________________________
ANTHONY SWAIN, et al. Plaintiffs - Appellees,
versus DANIEL JUNIOR, in his official capacity as Director of the Miami-Dade Corrections and Rehabilitation Department, and MIAMI-DADE COUNTY, FLORIDA
Defendants - Appellants. __________________________ On Appeal from the United States District Court for the Southern District of Florida __________________________ Before: WILSON, WILLIAM PRYOR and BRANCH, Circuit Judges. BY THE COURT: No part of our country has escaped the effects of COVID-19. It is thus not surprising that several inmates at the Metro West Detention Center (“Metro
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West”)—the largest direct-supervision jail facility in the State of Florida—have tested positive for the virus. This appeal concerns the adequacy of the measures implemented by Metro West to protect its prisoners from the spread of COVID-19.
On April 5, 2020, seven Metro West inmates filed a class action complaint challenging the conditions of the inmates’ confinement under 42 U.S.C. § 1983 and seeking habeas relief under 28 U.S.C. § 2241 for the named plaintiffs along with a “medically vulnerable” subclass of inmates.
At issue in this motion for a stay pending appeal is the preliminary injunction issued by the United States District Court for the Southern District of Florida on April 29, 2020, against defendants Miami-Dade County and Daniel Junior, the Director of the Miami-Dade Corrections and Rehabilitations Department (“MDCR”). The injunction requires the defendants to employ numerous safety measures to prevent the spread of COVID-19 and imposes extensive reporting requirements. Pursuant to Rule 8 of the Federal Rules of Appellate Procedure, we stay the injunction pending appeal and expedite the appeal.
I. MDCR, a department of Miami-Dade County, operates Metro West. When the first case of COVID-19 in Miami-Dade County was reported in early March
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2020, MDCR began enacting measures to protect inmates. Those measures included cancelling inmate visitation; screening arrestees, inmates, and staff; and advising staff of use of protective equipment and sanitation practices. On March 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) issued the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correction and Detention Facilities, (the “CDC Guidance”). MDCR reviewed the CDC Guidance and updated its practices. As the situation developed, MDCR continued to implement additional safety measures, including daily temperature screenings of all persons entering Metro West, establishing a “COVID-19 Incident Command Center and Response Line” to track testing and identify close contacts with the virus, developing a social hygiene campaign, and mandating that staff and inmates wear protective masks at all times. MDCR also implemented social distancing efforts, including staggering the dormitory bunks, requiring inmates to sleep head-to-toe to ensure further distancing, and instructing staff to encourage social distancing between inmates. The district court accepted as true that the defendants implemented these measures for purposes of issuing the preliminary injunction and did not resolve any factual disputes in favor of the plaintiffs.
On April 5, 2020, the plaintiffs filed a class action complaint on behalf of “all current and future persons detained at Metro West during the course of the
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COVID-19 pandemic.” Among other deficiencies, the class action complaint alleged that the inmates at Metro West did not have enough soap or towels to wash their hands properly, waited days for medical attention, were “denied basic hygienic supplies” like laundry detergent and cleaning materials, and were forced to sleep only two feet apart. They sought declaratory and injunctive relief for violations of the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 on behalf of the entire class and immediate release from custody pursuant to 28 U.S.C. § 2241 on behalf of the named plaintiffs and the medically vulnerable subclass.
The district court entered a temporary restraining order (“TRO”) against the defendants on April 7, two days after the complaint was filed. Consistent with the TRO, the defendants screened all new arrestees and staff as they entered the facilities, enhanced cleaning and sanitation measures, made efforts to increase social distancing, issued masks to all staff and inmates, supplied paper towels in the restrooms, and quarantined inmates showing COVID-19 symptoms.
On April 29, following a telephonic evidentiary hearing, the district court entered a preliminary injunction against the defendants on the plaintiffs’ § 1983
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claim.1 The preliminary injunction enjoins the defendants to:
• “Effectively communicate to all people incarcerated at [Metro West], 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”;
• “To the maximum extent possible considering [Metro West’s] current population level, provide and enforce adequate spacing of six feet or more between people incarcerated at Metro West so that social distancing can be accomplished”;
• “Ensure that each incarcerated person receives, free of charge (1) an individual supply of soap, preferably liquid as recommended by the CDC, sufficient to allow frequent hand washing each day; (2) hand drying machines, or disposable paper towels as recommended by the CDC, and individual towels, sufficient for daily use; (3) an adequate supply of disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and (4) an adequate supply of toilet paper sufficient for daily use”;
• “Provide reasonable access to showers and to clean laundry”;
• “Require that all MCDR staff wear personal protective equipment, including masks, and gloves when physically interacting with any person, and require that, absent extraordinary or unusual circumstances, a new pair of gloves is worn each time MDCR staff touch a different person; and require all inmate workers who are cleaning facilities or preparing food to follow this same protocol”;
1 The district court did not make a finding as to whether the defendants had complied with the TRO. We do note, however, that a report commissioned by the district court and prepared by experts for each party following a review of the facility and of the TRO appears to indicate that the defendants were in compliance with the TRO.
The district court also denied the plaintiffs’ requested habeas relief under § 2241 without prejudice.
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• “Require that all MDCR staff regularly wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol”;
• “Ensure access to proper testing for anyone displaying known symptoms of COVID-19 in accordance with CDC guidelines and for anyone who has come in contact with an individual who has tested positive for COVID-19”;
• “Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined, with continued access to showers, mental health services, phone calls with family, and communications with counsel; individuals identified as having COVID-19 or having been exposed to COVID-19 shall not be placed in cells normally used for disciplinary confinement absent emergency circumstances”;
• “Respond to all emergency (as defined by the medical community) requests for medical attention as soon as possible”;
• “Provide sufficient disinfecting supplies consistent with CDC recommendations in each housing unit, free of charge, so incarcerated people can clean hightouch areas or any other items in the unit between each use”;
• “Waive all medical co-pays for those experiencing COVID-19-related symptoms”;
• “Waive all charges for medical grievances during this health crisis”; and
• “Provide face masks for inmates at Metro West. The face masks must be replaced at medically appropriate intervals, and Defendants must provide inmates with instruction on how to use a face mask and the reasons for its use.”
The district court observed that the CDC’s Guidance “formed the basis” of
these requirements. In order to ensure compliance, it further ordered the
defendants to:
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• “Continue providing the Court with updated information regarding the number of staff and inmates who have tested positive for, or are being quarantined because of, COVID-19. These notices shall be filed every three days for the duration of [the order]; Defendants shall also continue to provide this information to their state criminal justice partners”;
• “Provide the [district court] with weekly reports containing the current population data for Metro West”; and
• “Submit, within 7 days of [the order], a proposal outlining steps Defendants will undertake to ensure additional social distancing safeguards in terms of housing inmates and inmate activity (medical visits, telephones, etc.).”
II.
“In considering whether to stay a preliminary injunction . . . we examine the
district court’s grant of the preliminary injunction for abuse of discretion,
reviewing de novo any underlying legal conclusions and for clear error any
findings of fact.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317
(11th Cir. 2019).
III.
A court considering whether to issue a stay “considers four 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.’” Nken v.
Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776
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(1987)). The first two factors are “the most critical.” Id. at 434. We address each factor in turn and conclude that a stay is warranted.
A. Likelihood of Success on Appeal In their § 1983 claim, the plaintiffs allege that the defendants violated the Eighth and Fourteenth Amendments through their deliberate indifference to the risk that COVID-19 poses to the plaintiffs. The defendants ask us to stay the injunction pending appeal because they contend that the plaintiffs failed to establish that they were entitled to a preliminary injunction. To obtain a preliminary injunction, the plaintiffs were required to establish that (1) “a substantial likelihood of success on the merits” exists; (2) they would suffer irreparable harm absent an injunction; (3) “the threatened injury to the[m] . . . outweighs” any harm the injunction might cause the defendants; and (4) if issued, the injunction would not be adverse to the public interest. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (internal quotation marks omitted). The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “The ‘cruel and unusual punishments’ standard applies to the conditions of a prisoner’s confinement.” Chandler v. Crosby, 379
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Case 1:20-cv-10617-WGY Document 164-3 Filed 05/06/20 Page 9 of 20 Case: 20-11622 Date Filed: 05/05/2020 Page: 9 of 20
F.3d 1278, 1288 (11th Cir. 2004); see also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009) (explaining that a pre-trial detainee’s “rights exist under the due process clause of the Fourteenth Amendment” but “are subject to the same scrutiny as if they had been brought as deliberate indifference claims under the Eighth Amendment”). An Eighth Amendment challenge to the conditions of confinement has two components: one objective and the other subjective. See Farmer v. Brennan, 511 U.S. 825, 846 (1994).
First, to satisfy the “objective component,” the prisoner must show “an objectively intolerable risk of harm.” Id. He must show that the challenged conditions were “extreme” and presented an “‘unreasonable risk of serious damage to his future health’ or safety.” Chandler, 379 F.3d at 1289 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). The defendants do not contest for purposes of this motion that the plaintiffs can satisfy this component.
Second, to satisfy the “subjective component,” the prisoner must show that the prison official acted with deliberate indifference. Id. A prison official acts with deliberate indifference when he “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; see also Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). A prison “official may escape liability for known risks ‘if [he] responded reasonably to the risk, even if the harm ultimately
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was not averted.’” Chandler, 379 F.3d at 1290 (quoting Farmer, 511 U.S. at 844). Deliberate indifference requires the defendant to have a subjective “state of mind more blameworthy than negligence,” Farmer, 511 U.S. at 835, closer to criminal recklessness, id. at 839–40.
The defendants are likely to prevail on appeal because the district court likely committed errors of law in granting the preliminary injunction. In conducting its deliberate indifference inquiry, the district court incorrectly collapsed the subjective and objective components. The district court treated the increase in COVID-19 infections as proof that the defendants deliberately disregarded an intolerable risk. In doing so, it likely violated the admonition that resultant harm does not establish a liable state of mind. See Farmer, 511 U.S. at 844. The district also likely erred by treating Metro West’s inability to “achieve meaningful social distancing” as evincing a reckless state of mind. Although the district court acknowledged that social distancing was “impossible” and “cannot be achieved absent an additional reduction in Metro West’s population or some other measure to achieve meaningful social distancing,” it concluded that this failure made it likely that the plaintiffs would establish the subjective component of their claim. But the inability to take a positive action likely does not constitute “a state of mind more blameworthy than negligence.” Id. at 835.
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The defendants are also likely to succeed on appeal because the plaintiffs offered little evidence to suggest that the defendants were deliberately indifferent. Indeed, the evidence supports that the defendants are taking the risk of COVID-19 seriously. For example, the expert report commissioned by the district court concluded that the staff at Metro West “should be commended for their commitment to protect the staff and inmates in this facility during this COVID-19 pandemic. They are doing their best balancing social distancing and regulation applicable to the facility.” According to the expert report, Metro West appears to have implemented many measures to curb the spread of the virus. While perhaps impossible for the defendants to implement social distancing measures effectively in all situations at Metro West’s current population level, the district court cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate. See Valentine v. Collier, No. No. 20-20207, 2020 WL 1934431, at *4 (5th Cir. Apr. 27, 2020) (“[T]reating inadequate measures as dispositive of the Defendants’ mental state . . . resembles the standard for civil negligence, which Farmer explicitly rejected.”).
The only other evidence the district court relied on to establish deliberate indifference is that Metro West’s social-distancing policies are “not uniformly enforced.” But the district court made no finding that the defendants are ignoring
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or approving the alleged lapses in enforcement of social-distancing policies, so these lapses in enforcement do little to establish that the defendants were deliberately indifferent. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995) (requiring plaintiffs establish a causal connection between the defendant’s conduct and the constitutional violation to prevail on a deliberateindifference claim). Accepting, as the district court did, that the defendants adopted extensive safety measures such as increasing screening, providing protective equipment, adopting social distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures, the defendants’ actions likely do not amount to deliberate indifference. So the district court likely erred in this regard.
B. Irreparable Injury The defendants have also shown that they will be irreparably injured absent a stay. See Nken, 556 U.S. at 434. 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. For example, the injunction requires that the defendants provide each Metro West inmate with an individual supply of soap and
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disinfectant products. Under pain of contempt, therefore, MDCR must divert these high-demand supplies to Metro West, even though they may be more critical at another county facility. Similarly, the injunction requires that the defendants test all inmates with COVID-19 symptoms and everyone with whom they have been in contact. To avoid contempt, then, MDCR must allocate limited testing resources to Metro West at the expense of other county facilities. All the while, the district court has tasked itself with overseeing the steps the defendants are taking to “ensure additional social distancing safeguards,” even though it acknowledges that social distancing is “impossible” at the current inmate population level. In short, the district court assumed the role of “super-warden” that our decisions repeatedly condemn. See Pesci v. Budz, 935 F.3d 1159, 1167 (11th Cir. 2019); Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 965 (11th Cir. 2018).
As the Supreme Court has cautioned, “it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94 (2006). In large measure, the injunction transfers the power to administer the Metro West facility in the midst of the pandemic from public officials to the district court. The injunction hamstrings
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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.” Valentine, 2020 WL 1934431, at *5. Such a prohibition amounts to an irreparable harm.
C. Balance of Harms and Public Interest The final two factors are the balance of harms and the public interest. See Nken, 556 U.S. at 426. Here, both those factors weigh in favor of a stay. The district court found that because the inmates “face immediate, irreparable harm from COVID-19,” their risk of harm outweighs the harm imposed on the defendants from complying with the preliminary injunction. But the question is not whether COVID-19 presents a danger to the inmates—we do not dismiss the risk of harm that COVID-19 poses to everyone, including the inmates at Metro West. The question is instead whether the plaintiffs have shown that they will suffer irreparable injuries that they would not otherwise suffer in the absence of an injunction. See id.; cf. Valentine, 2020 WL 1934431, at *5. Nothing in the record indicates that the defendants will abandon the current safety measures absent a preliminary injunction, especially since the defendants implemented many
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of those measures before the plaintiffs even filed the complaint. Nor do the plaintiffs contend that they will abandon those measures. For that reason, the balance of harms weighs in the defendants’ favor.
Finally, where the government is the party opposing the preliminary injunction, its interest and harm merge with the public interest. Nken, 556 U.S. at 435. We therefore conclude that the defendants have satisfied all four requirements for a stay.
IV. Before concluding, we address two other probable errors in the district court’s order that make the defendants likely to succeed on appeal: its refusal to address whether the plaintiffs established that the county and defendant Junior were likely liable under Monell and its refusal to address the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”). Both inquiries are necessary components of the likelihood of success inquiry a court must undertake in order to issue a preliminary injunction in the first instance. See Wreal, 840 F.3d at 1247. First, the district court likely erred in holding that the plaintiffs are not required to establish municipal liability under Monell at the preliminary injunction stage. A municipality may not be held liable under § 1983 unless a municipal
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policy or custom caused the plaintiffs’ injury. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). The policy or custom requirement of Monell applies to § 1983 claims for declaratory or injunctive relief no less than claims for damages. Los Angeles Cty. v. Humphries, 562 U.S. 29, 31 (2010). Because a district court cannot award prospective relief against a municipality unless the requirements of Monell are satisfied, id., plaintiffs must establish that they are likely to satisfy the requirements of Monell to obtain a preliminary injunction against a municipality. See Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994).
Contrary to Church, the district court ruled that the plaintiffs did not need to establish a likelihood of success under Monell to obtain a preliminary injunction, and it did not address whether they were likely to satisfy Monell. For that reason, Miami-Dade County is likely to succeed in arguing on appeal that the district court erred by enjoining it. And because the plaintiffs sued defendant Junior only in his official capacity, which “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent,” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell, 436 U.S. at 690), they must also satisfy the requirements of Monell to obtain injunctive relief against him to the extent they challenge his conduct as an officer of Miami-Dade County. See Barnett v.
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MacArthur, No. 18-12238, 2020 WL 1870445, at *3 (11th Cir. Apr. 15, 2020); Familias Unidas v. Briscoe, 619 F.2d 391, 403–04 (5th Cir. 1980). The district court did not address whether the plaintiffs were likely to satisfy Monell as to defendant Junior, so he is also likely to succeed in having the injunction against him vacated on appeal.
Second, the district court also likely erred in declining to address PLRA exhaustion at the preliminary injunction stage. In no uncertain terms, the PLRA provides: “No 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). So long as those remedies are “available” to the prisoner, a “court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). But the district declined to address exhaustion because failure to exhaust is an affirmative defense, and therefore, according to the district court, is inapplicable at the preliminary injunction stage. That decision was misguided.
Just because failure to exhaust is an affirmative defense and not a pleading requirement, see Jones v. Bock, 549 U.S. 199, 216 (2007), does not render exhaustion irrelevant to determining whether the plaintiffs are entitled to a
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preliminary injunction. “[T]he burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Failure to exhaust is an affirmative defense, so the defendants bear the burden of proving it. See Jones v. Bock, 549 U.S. at 216. Because the defendants correctly raised and briefed the defense in a motion to dismiss and in their opposition to the plaintiffs’ motion for a preliminary injunction, the district court was obliged to decide whether the defendants were likely to establish the defense. See Gonzales, 546 U.S. at 428; Chandler, 379 F.3d at 1286 (explaining that exhaustion under the PLRA is “a threshold matter” that a court “must address” before reaching the merits). Although the district court determined that the existence of the defense turned on disputed questions of fact, district courts are required to resolve factual disputes regarding PLRA exhaustion—a “preliminary issue”—at the outset of a case. See Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). The district court could not determine that the plaintiffs were likely to succeed on their § 1983 claim without, at the very least, finding that the defendants were unlikely to carry their burden of establishing failure to exhaust. See Gonzales, 546 U.S. at 428–29. Because it failed to do so, the defendants are likely to succeed on appeal.
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V. In conclusion, the defendants’ motion for a stay pending appeal and motion to expedite the appeal are GRANTED. The plaintiffs’ “Opposed Motion for Oral Argument on Appellants’ Emergency Motion to Stay Injunction Pending Appeal” is DENIED. The Court DIRECTS the Clerk to expedite the appeal for merits disposition purposes and to schedule it for oral argument before the earliest available panel. The Court sets the following briefing schedule: the initial brief is due on May 18, 2020, the response brief is due on May 28, 2020, and the reply brief is due on June 1, 2020. No motions for extensions of time will be considered.
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WILSON, Circuit Judge, dissenting from the order granting the stay: To persuade us to grant a stay, the County bore the burden of making “a strong
showing” that it is likely to succeed on the merits—a “most critical” factor. See Nken v. Holder, 556 U.S. 418, 433–34 (2009); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019). It failed to do so. I see no strong showing of error as to the district court’s factual findings or legal conclusions about (1) meaningful social distancing and population reduction or other measures to achieve it, or (2) officials’ knowledge and the reasonableness of their response. See Brown v. Plata, 563 U.S. 493, 521, 526–30 (2011) (analyzing the necessity of reducing overcrowding after other failed remedial measures in the Eighth Amendment context); Helling v. McKinney, 509 U.S. 25, 36–37 (1993) (describing focus on both society’s and prison authorities’ current attitudes and conduct). And I otherwise fail to see an abuse of discretion here. Therefore, I dissent from the order granting the stay.
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Case 1:20-cv-10617-WGY Document 164-4 Filed 05/06/20 Page 1 of 14

Barco, et al. v. Price, et al., --- F.Supp.3d ----, 2020 WL 2099890 (D. NM May 1, 2020)

United States District Court, D. New Mexico.
RANDO BETANCOURT BARCO, MICHEL FUENTES LUIS, LUIS ALFONSO MEJIA VELASQUEZ,
Plaintiffs/Petitioners, v.
COREY PRICE, in his official capacity as Director of the El Paso ICE Field
Office; DORA OROZCO, in her official capacity as Warden of Otero County Processing Center; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary,
U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; and U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants/Respondents.
No. 2:20-cv-350-WJ-CG |
Filed 05/01/2020

*1 THIS MATTER comes before the Court on Plaintiffs’ Motion for a Temporary Restraining Order [Doc. 3], filed April 20, 2020. Plaintiffs are noncitizen detainees who are in the process of being removed from the United States. They are detained at the Otero County Processing Center (“Otero”). Plaintiffs request that the Court issue a temporary restraining order releasing them from Otero because they have medical conditions that make them vulnerable to serious illness or death should they contract Coronavirus Disease 2019 (COVID-19) and that there are no adequate measures that can ensure they avoid exposure to COVID-19 at Otero.
Plaintiffs are seeking relief under 28 U.S.C. § 2241 as a habeas corpus petition and 28 U.S.C. § 1331 as an independent cause of action for injunctive relief under the Fifth Amendment’s Due Process Clause. The Court has reviewed the briefing, exhibits, and applicable law and finds that Plaintiffs have not met their heightened burden to demonstrate that the extraordinary remedy of a temporary restraining order is warranted. For the reasons explained in this Memorandum Opinion and Order, the Court denies Plaintiffs’ motion.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY
RESTRAINING ORDER
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE

PROCEDURAL HISTORY
On April 20, 2020, Plaintiffs filed their complaint [Doc. 1], a request that the case be assigned to United States District Judge Judith C. Herrera [Doc. 2], and the subject motion [Doc. 3]. Later that day, the United States entered its appearance on behalf of all Defendants [Doc. 11], and the case was
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Barco, et al. v. Price, et al., --- F.Supp.3d ----, 2020 WL 2099890 (D. NM May 1, 2020)

assigned to the undersigned Judge. On April 21, 2020, the Court ordered expedited briefing [Doc. 12]. As part of that Order, the Court instructed Defendants to include their position on whether the case should be assigned to Judge Herrera. On April 24, 2020, Defendants submitted their response [Doc. 20] opposing Plaintiffs’ motion. In their response, Defendants alerted the Court that:

As part of [the United States

Immigration and Customs

Enforcement’s (ICE) ] ongoing

efforts at Otero to identify and

release appropriate vulnerable

detainees,

Petitioner

Betancourt was released from

custody on April 21, 2020.

Thus, his claim is now moot.

Petitioners Fuentes and Mejia

were likewise evaluated for

potential release but were not

granted parole because

contrary to their allegations,

they do not present

documented [Centers for

Disease Control and

Prevention (CDC) ] recognized

vulnerabilities for COVID-19

and are flight risks due to their

immigration and criminal

histories.

Doc. 20 at 2–3 (citations omitted). Plaintiffs filed a notice [Doc. 21] later that same day notifying the Court that they no longer requested an order releasing Plaintiff Betancourt from Otero. Briefing on the motion was completed on April 27, 2020. Doc. 25 (Notice of Completion of Briefing).

The court then reviewed the briefing, exhibits, and applicable law and determined that a hearing was not necessary to rule on Plaintiffs’ motion.
REQUEST TO ASSIGN THE CASE TO JUDGE HERRERA
Prior to the undersigned Judge randomly being assigned this case, Plaintiffs requested that Judge Herrera be assigned the matter in their notice of a related case [Doc. 2]. Plaintiffs argued that assigning the case to Judge Herrera would conserve judicial resources because the case involves common questions of law and fact with a case that was previously assigned to her: Soto v. Governor of New Mexico (No. 1:20-cv-317-JCH-KK).
*2 “In the District of New Mexico, a judge will, at times, transfer a case to another judge if the other judge has conducted a large amount of work on the case or on a related case.... Familiarity with legal issues, however, is not a basis upon which the Court will transfer a case.” Stark-Romero v. Nat’l R.R. Passenger Co., 763 F. Supp. 2d 1231, 1274 (D.N.M. Jan. 12, 2011).
In Soto, the petitioners requested release from pretrial detention imposed by the State of New Mexico out of fear of contracting COVID-19 while detained. Judge Herrera found that the petition did not “present any federal constitutional or legal basis, fails to state any claim for [28 U.S.C.] § 2241 relief, and must be dismissed.” 2020 WL 1853050, at *4 (D.N.M. Apr. 13, 2020). Compared to this case, Soto involves different parties, different detention facilities, and does not
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Barco, et al. v. Price, et al., --- F.Supp.3d ----, 2020 WL 2099890 (D. NM May 1, 2020)

meaningfully share any common questions of law. The only discernable similarity is that both cases concern requests for release from detention based on COVID-19, and that is not a sufficient reason to reassign this case to Judge Herrera. The Court also notes that the judgment in Soto was entered on April 20, 2020, so it cannot be consolidated with this case pursuant to Fed. R. Civ. P. 42. Finally, if Plaintiffs’ argument that the instant case is related to the Soto case was the legal standard to determine whether one case is related to another case, then this would mean that every case filed in this Court seeking the release of someone because of COVID-19 should be assigned to Judge Herrera. That is not a viable option and is not going to happen in this case. Accordingly, Plaintiffs’ request that the case be assigned to Judge Herrera is DENIED.
FACTUAL BACKGROUND
I. COVID-19 “COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time.” Doc. 1-3 (Declaration of Joseph J. Amon, Ph.D. MSPH (“Amon Decl.”)) ¶ 6. The Centers for Disease Control and Prevention (“CDC”) reports that, as of April 30, 2020, the United States has 1,031,659 COVID-19 cases and 60,057 deaths from it. CDC, Cases of COVID-19 in the United States, https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html (last

visited April 30, 2020). The New Mexico Department of Health (“NMDH”) reports that, as of April 30, 2020, New Mexico has 3,411 COVID-19 cases and 123 deaths from it. NMDH, COVID-19 in New Mexico, https://cvprovider.nmhealth.org/publicdashboard.html (last visited April 30, 2020). Otero County, however, where the Otero County Processing Center is located and where Plaintiffs are detained, only has 5 COVID-19 cases and no deaths from it. Id.
II. Plaintiff Michel Fuentes Luis Plaintiff Michel Fuentes Luis (“Fuentes”) is a 33-year-old citizen of Cuba. Doc. 20-1 (Declaration of Deputy Field Officer Director Juan L. Acosta (“Acosta Decl.”)) Fuentes ¶ 1. He illegally entered the United States on June 30, 2019. Id. ¶ 2. A few days later, United States Border Patrol issued him a notice to appear before an immigration judge and returned him to Mexico under the Migrant Protection Protocols (MPP).1 Id. ¶ 4. On August 19, 2019, he appeared before an immigration judge in MPP removal proceedings. Id. On September 18, 2019, an immigration judge ordered him removed in absentia. Id. ¶ 6. He reentered the United States illegally on September 22, 2019. Id. ¶ 7. On September 25, 2019, he was convicted of illegal entry under 8 U.S.C. § 1325 in the United States District Court of the Western District of Texas and sentenced to time served. Id. ¶ 9. He was then transferred to Otero for removal proceedings. Id. ¶ 11. On March 5, 2020, an immigration judge declined to issue him a bond. Id. ¶ 14. His next removal proceeding is May 4, 2020. Id. ¶ 15.
1 “The MPP directs the ‘return’ of
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Barco, et al. v. Price, et al., --- F.Supp.3d ----, 2020 WL 2099890 (D. NM May 1, 2020)

asylum applicants who arrive from Mexico as a substitute to the traditional options of detention and parole. Under the MPP, these applicants are processed for standard removal proceedings, instead of expedited removal. They are then made to wait in Mexico until an immigration judge resolves their asylum claims.” Innovation Law Lab v. McAleenan, 924 F.3d 503, 506 (9th Cir. 2019).
*3 Plaintiff Fuentes alleges he was diagnosed with asthma at age three and has “used an inhaler ever since.” Doc. 1-7 (Declaration of Plaintiff Fuentes (“Fuentes Decl.”)) ¶ 5. This medical condition, he claims, makes him “especially vulnerable to severe health complications if [he] get[s] sick with COVID-19.” Id. ¶ 2. He was recently evaluated for potential release from Otero:
FUENTES has been evaluated for potential release, but he does not present a CDC recognized vulnerability for COVID-19. He had no documented history of asthma upon arrival and has not been diagnosed with asthma or respiratory difficulties. He did not have an inhaler in his possession when he was taken into [Enforcement and Removal Operations (“ERO”) ] custody on September 27, [2019]. He has not subsequently requested or been issued an inhaler. He presents a heightened risk of flight given his background.

Acosta Decl., Fuentes ¶ 16. The CDC

maintains a webpage where they publish the

medical conditions they are aware of that

potentially put people at higher risk for

severe illness from COVID-19. In terms of

asthma, the CDC considers only those with

moderate to severe asthma to be at a higher

risk. See CDC, People Who Are at Higher

Risk

for

Severe

Illness,

https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-at-

higher-risk.html (last visited April 30, 2020)

(“People with chronic lung disease or

moderate to severe asthma”).

III. Plaintiff Luis Alfonso Mejia Velasquez Plaintiff Luis Alfonso Mejia Velasquez (“Mejia”) is a 46-year-old citizen of Honduras. Acosta Decl., Mejia ¶ 1. He illegally entered the United States on November 4, 2003. Id. ¶ 2. A month later, an immigration judge ordered him to be removed. Id. ¶ 5. He was removed to Honduras on February 9, 2004. Id. ¶ 6. On an unknown date, he illegally reentered the United States. Id. ¶ 7. On February 14, 2012, he was convicted of resisting arrest with force or violence in the 22nd Judicial District Court of St. Tammany Parish in Covington, Louisiana. Id. ¶ 9. His prior removal order was then reinstated, and he was removed for a second time on March 30, 2012. Id. ¶¶ 1113. On January 31, 2020, he illegally reentered the United States for a third time. Id. ¶ 14. On March 23, 2020, he was convicted of illegal reentry under 8 U.S.C. § 1326 in the United States District Court of the Western District of Texas and sentenced to time served. Id. ¶¶ 16-17. He was then transferred to Otero for removal proceedings.
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Barco, et al. v. Price, et al., --- F.Supp.3d ----, 2020 WL 2099890 (D. NM May 1, 2020)

Id. ¶ 19.
Plaintiff Mejia alleges he was diagnosed with hypertension and, as a result, experiences “dizziness, frequent headaches, and chest pain almost every night.” Doc. 1-9 (Declaration of Plaintiff Mejia (“Mejia Decl.”)) ¶¶ 5-7. This medical condition, he claims, makes him “especially vulnerable to severe health complications if [he] get[s] sick with COVID-19.” Id. ¶ 2. He was recently evaluated for potential release from Otero:
MEJIA has been evaluated for potential release, but he does not have a CDC-recognized vulnerability for COVID-19 because he is receiving medication for hypertension and his primary care provider has cleared him from daily blood pressure checks. MEJIA presents a risk of danger and a heightened risk of flight given his criminal and immigration backgrounds.
Acosta Decl., Mejia ¶ 21. On the webpage that the CDC uses to publish the known medical conditions that potentially put people at higher risk for severe illness from COVID19, hypertension is not listed:
*4 Based on what [the CDC] know[s] now, those at high-risk for severe illness from COVID-19 are:
■ People 65 years and older
■ People who live in a nursing home or long-term care facility

People of all ages with underlying medical conditions, particularly if not well controlled, including:
■ People with chronic lung disease or moderate to severe asthma

■ People who have serious heart conditions

■

People

who

are

immunocompromised

○ Many conditions can cause a person

to be immunocompromised,

including cancer treatment, smoking,

bone marrow or organ

transplantation, immune deficiencies,

poorly controlled HIV or AIDS, and

prolonged use of corticosteroids and

other

immune

weakening

medications

■ People with severe obesity (body mass index [BMI] of 40 or higher)

■ People with diabetes

■ People with chronic kidney disease undergoing dialysis

■ People with liver disease

CDC, People Who Are at Higher Risk for

Severe

Illness,

https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-at-

higher-risk.html (last visited April 30, 2020).

IV. COVID-19 at the Otero County Processing Center On April 8, 2020, one detainee at Otero tested positive for COVID-19. Acosta Decl. ¶ 28.
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Barco, et al. v. Price, et al., --- F.Supp.3d ----, 2020 WL 2099890 (D. NM May 1, 2020)

That detainee has since been removed from the United States. Id. As of April 23, 2020, there is one documented positive COVID-19 case at Otero. Id. ¶ 27. The 43 detainees who had known contact with that individual were separated from the general population and are monitored daily for fever and symptoms of respiratory illness. Id. ¶¶ 16 and 27.
Since the onset of COVID-19, “ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.” Id. ¶ 11. Otero’s staff follows “ERO’s COVID-19 Pandemic Response Requirements and the CDC’s Interim Guidance on Management of [COVID-19] in Correctional and Detention Facilities.” Id. ¶ 12.
As of April 20, 2020, Otero “is at 60% of its normal capacity.” Id. ¶ 7. The population percentage at each housing unit is monitored daily to allow for as much social distancing as practicable. Id. Detainees are assigned to beds that are separated by six feet and, when detainees must be assigned to the same bunk bed, they sleep feet-to-head to increase their distance from each other. Id. Recreation, meals, and other scheduled activities have also been adjusted to allow for social distancing. Id. ¶ 23. To further mitigate the introduction of COVID-19 into Otero, inperson social visitation has been suspended. Id. ¶ 26.
Officials at Otero have posted CDC guidance with information on COVID-19 in dormitories and community areas. The posters include information about the

symptoms, spread, and prevention of COVID-19. Id. ¶ 20. Detainees are provided with hygiene kits that include soap, shampoo, a toothbrush, and toothpaste, and the hygiene kits are replaced at no cost to the detainees. Id. ¶ 19. Hand sanitizer is available for the detainees to use, and additional soap dispensers have been placed in the housing units. Id. Cleaning crews, both contract staff and volunteer detainee workers, also clean and disinfect the housing units and common areas. Id.

*5 To ensure new detainees do not bring COVID-19 into Otero, each new detainee is medically screened and separated for a 14day medical observation:

During detention intake, a

qualified health care provider

assesses each detainee for fever

and respiratory illness. Each

detainee is asked, in a language

they understand, to confirm if

they have had close contact

with a person with laboratory

confirmed COVID-19 in the

past 14 days. Each detainee is

asked whether they have

traveled from or through

area(s) with sustained

community

transmission

during the prior two weeks. All

new detainee admissions are

then assigned to a staggered

housing location for 14-day

medical observation.

Id. ¶ 14. Any asymptomatic detainee with known exposure to a person with confirmed COVID-19 is separated into a cohort with
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other similarly exposed detainees for the duration of COVID-19’s 14-day incubation period. Id. ¶ 16. They are monitored daily for fever and symptoms of respiratory illness and are referred to a medical provider for evaluation if they develop symptoms. Id. If a detainee tests positive for COVID-19, they are isolated and receive medical treatment. Id. ¶ 15. If needed, the detainee will be referred for local hospitalization. Id.
The staff at Otero have received guidance on how to detect symptoms of COVID-19 and help prevent its spread. Id. ¶ 22. When interacting with detainees, staff members use personal protective equipment, to include N95 respirators, eye protection, and latex gloves. Id. Staff members are also encouraged to stay home if they feel ill, and those who have had direct contact with a person testing positive for COVID-19 are asked to self-quarantine for 14 days. Id.
DISCUSSION
“[W]hen a temporary restraining order is sought on notice to the adverse party, it may be treated by the court as a motion for a preliminary injunction.” 13 Moore’s Federal Practice § 65.31 (2020); see Fed. R. Civ. P. 65. Defendants received notice of Plaintiffs’ motion for a temporary restraining order and filed a response opposing it. Doc. 11 (Notice of Appearance by the United States on behalf of the Defendants); Doc. 20 (Defendants’ Response). The Court, therefore, will treat Plaintiffs’ request for a temporary restraining order as a request for a preliminary injunction.

“A preliminary injunction is an extraordinary remedy, the exception rather than the rule.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019) (quoting Free the Nipple–Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019)). To obtain a preliminary injunction, Plaintiffs must establish: “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest.” Dine Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (emphasis added) (quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)). “Because a preliminary injunction is an extraordinary remedy, the movant’s right to relief must be clear and unequivocal.” Id. (quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1224 (10th Cir. 2008)).
*6 Courts disfavor preliminary injunctions that “exhibit any of three characteristics: (1) it mandates action (rather than prohibiting it), (2) it changes the status quo, or (3) it grants all the relief that the moving party could expect from a trial win.” Mrs. Fields Franchising, LLC, 941 F.3d at 1232 (quoting Free the Nipple-Fort Collins, 916 F.3d at 797). Because Plaintiffs’ request for immediate release from Otero meets all three disfavored categories, they face “a heavier burden on the likelihood-of-success-on-themerits and the balance-of-harms factors.” Id.
I. Plaintiffs Fail to Establish a Substantial
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Likelihood of Prevailing on the Merits Plaintiffs are seeking relief under 28 U.S.C. § 2241 as a habeas corpus petition and 28 U.S.C. § 1331 as an independent cause of action for injunctive relief under the Fifth Amendment’s Due Process Clause. They argue that the Court may order their immediate release under either.
The Court may grant a writ of habeas corpus to someone “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “The fundamental purpose of a § 2241 habeas proceeding is ... ‘an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody.’ ” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “It is well-settled law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)—not through federal habeas proceedings.” Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011).
Although Plaintiffs are requesting immediate release, they are not challenging the legality or duration of their detention. At the core of their argument, they contend that the conditions of their detention at Otero are inadequate to protect them from exposure to COVID-19. For example, Plaintiffs allege that they “are in close quarters on a near constant basis, making it virtually impossible to adhere to social distancing guidelines,” “inadequate hygienic and sanitation practices

have continued amidst the COVID-19 pandemic,” “they are not provided with sufficient cleaning supplies or hand soap,” and that the “guards do not wear masks or gloves.” Doc. 1 (Complaint) at 8–10. Plaintiffs do not allege that the fact that they are detained for removal proceedings or that the length of their detention is illegal. Accordingly, the Court finds that Plaintiffs are challenging the conditions of their detention, as opposed to its fact or duration, which is not appropriate under 28 U.S.C. § 2241. See Standifer, 653 F.3d at 1280; see also Sacal-Micha v. Longoria, 2020 WL 1518861, at *4 (S.D. Tex. Mar. 27, 2020) (explaining that 28 U.S.C. § 2241 is used to challenge the fact or duration of confinement, not conditions of confinement, and that “at the core of his allegations [plaintiff] challenges the conditions of his confinement”).
Federal immigration detention is a form of civil detention that must comply with the Fifth Amendment’s Due Process Clause. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). To evaluate the constitutionality of pretrial detention under the Fifth Amendment, the Court must determine whether the conditions “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). In the absence of an expressed intent to punish, Plaintiffs can prevail by showing that the conditions are not “rationally related to a legitimate nonpunitive governmental purpose” or that the conditions “appear excessive in relation to that purpose.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (quoting Bell, 441 U.S. at 561).2
2 The parties seem to treat Plaintiffs’ claims, in part, as a denial of medical
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care. Even if Plaintiffs’ claims were

treated as a denial of medical care, the

analysis and result would be the same.

In Colbruno v. Kessler, a case

Plaintiffs cited, the Tenth Circuit

explained that “when a ‘plaintiff finds

himself in the criminal justice system

somewhere between the two stools of

an initial seizure and post-conviction

punishment[,] we turn to the due

process clauses of the Fifth or

Fourteenth Amendment and their

protection

against

arbitrary

governmental action by federal or state

authorities’ to evaluate claims of

mistreatment.” 928 F.3d 1155, 1162

(10th Cir. 2019) (quoting Porro v.

Barnes, 624 F.3d 1322, 1326 (10th Cir.

2010)).

*7 Plaintiffs do not allege that Defendants have an expressed intent to punish. Plaintiffs argue that “[k]eeping medically-vulnerable people detained in such close proximity to one another and without testing or screening or the sanitation or protective equipment necessary to combat the spread of [COVID19] is ‘not rationally related to a legitimate governmental objective’ and thus constitutes illegitimate punishment in violation of Plaintiffs’ due process rights.” Doc. 3 at 18– 19 (citation omitted). Plaintiffs’ argument relies on two unproven factual premises: that they have medical conditions that put them at a higher risk of serious illness or death should they contract COVID-19 and that there are no adequate measures that can ensure they avoid exposure to COVID-19 while detained at Otero. Each is discussed in turn.

A. Plaintiffs’ Alleged Medical Conditions Plaintiffs have failed to show that Plaintiff Fuentes is medically vulnerable to COVID19. Plaintiff Fuentes alleges he was diagnosed with asthma at age three and has “used an inhaler ever since.” Fuentes Decl. ¶ 5. This medical condition, he claims, makes him “especially vulnerable to severe health complications if [he] get[s] sick with COVID-19.” Id. ¶ 2. Plaintiff Fuentes, however, did not have an inhaler in his possession when taken into custody and has not required any treatment for asthma or experienced any respiratory difficulties in the seven months he has been detained. Acosta Decl., Fuentes ¶ 16. Plaintiff Fuentes was also recently evaluated for potential release and was found to “not present a CDC recognized vulnerability for COVID-19.” Id. Under CDC guidelines, only people with moderate or severe asthma are identified as potentially at a higher risk for severe illness from COVID-19. See CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-athigher-risk.html (last visited April 30, 2020).
The medical expert declarations Plaintiffs submitted concerning Plaintiff Fuentes’ alleged asthma condition have minimal probative value because they appear to be based solely on the claims made by Plaintiff Fuentes in his declaration without any independent verification through medical documents or examination. See Amon Decl. ¶ 12 (“According to his declaration, [Plaintiff Fuentes] has asthma. This condition puts him at high risk for severe illness and death from COVID-19.”); see Doc. 1-5 (Declaration of Norton Kalishman, MD (“Kalishman
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Decl.”)) ¶¶ 3 and 23 (“I have reviewed the

declaration[ ] of ... Michel Fuentes Luis” and

he “has been diagnosed with asthma that has

required the use of an inhaler since he was

three. This condition puts him at high risk of

serious illness or death if he is infected with

COVID-19.”).

Plaintiff

Fuentes’

exaggeration concerning his alleged asthma

condition is not surprising when considering

he also stated in his declaration, “I have no

criminal convictions in the U.S.,” when in

fact he does: “On September 25, 2019, the

U.S. District Court of the Western District of

Texas in Pecos convicted FUENTES of

illegal entry.” Fuentes Decl. ¶ 8; Acosta

Decl., Fuentes ¶ 9. The Court finds that

Plaintiffs have failed to show that Plaintiff

Fuentes is medically vulnerable to COVID-

19.

Plaintiffs have also failed to show that Plaintiff Mejia is medically vulnerable to COVID-19. Plaintiff Mejia alleges he was diagnosed with hypertension and, as a result, experiences “dizziness, frequent headaches, and chest pain almost every night.” Mejia Decl. ¶¶ 5–7. This medical condition, he claims, makes him “especially vulnerable to severe health complications if [he] get[s] sick with COVID-19.” Id. ¶ 2. Plaintiff Mejia, however, is receiving medication for hypertension while detained at Otero and his primary care provider has cleared him from daily blood pressure checks. Acosta Decl., Mejia ¶ 21. Plaintiff Mejia was also recently evaluated for potential release and was found to “not have a CDC-recognized vulnerability for COVID-19.” Id. The CDC does not list hypertension on the webpage they use to publish the medical conditions that potentially put people at higher risk for severe illness from COVID-19. See CDC,

People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-athigher-risk.html (last visited April 30, 2020).
*8 The medical expert declarations Plaintiffs submitted concerning Plaintiff Mejia’s hypertension also have minimal probative value because they also appear to be based solely on the claims made by Plaintiff Mejia in his declaration without any independent verification through medical documents or examination. See Amon Decl. ¶ 13 (“According to his declaration, [Plaintiff Mejia] appears to have poorly controlled hypertension with recurring symptoms of chest pain, difficulty breathing, headaches and dizziness.” Plaintiff Mejia’s “condition and potentially related symptoms indicate he is likely at high risk for severe illness and death from COVID-19.”); see Kalishman Decl. ¶¶ 3 and 23 (“I have reviewed the declaration[ ] of ... Louis Alfonzo Mejia Velasquez” and he “has been diagnosed with hypertension that has required the use of medication and left him hospitalized on three occasions. This condition puts him at high risk of serious illness or death if he is infected with COVID-19.”).
Plaintiffs argue in their reply that other Courts have found hypertension to be a condition that puts people at a higher risk of serious illness or death should they contract COVID-19. Doc. 24 at 8–9. However, of the three cases Plaintiffs cite, each concern plaintiffs with multiple medical conditions and risk factors, not just hypertension. For example, in Essien v. Barr, 2020 WL 1974761 (D. Colo. Apr. 24, 2020), the Court explains that the plaintiff, in addition to
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having hypertension, has six other medical conditions and risk factors for COVID-19. The cases Plaintiffs cite do no stand for the proposition that if someone has hypertension, that condition alone puts them at greater risk of serious illness or death should they contract COVID-19. The Court finds that Plaintiffs have failed to show that Plaintiff Mejia is medically vulnerable to COVID-19.

B. Otero County Processing Center’s

COVID-19 Measures

Plaintiffs have also failed to show that there

are no adequate measures that can ensure

they avoid exposure to COVID-19 while

detained at Otero. As discussed in detail in

the factual background section of this

Memorandum Opinion and Order, Otero has

taken numerous measures, following ERO’s

COVID-19

Pandemic

Response

Requirements and the CDC’s Interim

Guidance on Management of COVID-19 in

Correctional and Detention Facilities, to

prevent its detainees from exposure to

COVID-19. Additionally, the allegations

raised by Plaintiffs regarding the conditions

at Otero are directly contrary to the evidence

provided by Deputy Field Office Director

Acosta. For example, Plaintiffs allege that

detainees “lack sufficient cleaning supplies

and hand soap.” Fuentes Decl. ¶ 13; Mejia

Decl. ¶ 12 (“I am very worried about the

sanitation in this facility. We only have

shampoo to wash our hands and bodies”). But

the more credible evidence before the Court

demonstrates that Plaintiffs’ representations

are not accurate:

At each detention facility, upon admission, all detainees are provided a no-cost hygiene kit

which includes soap and shampoo (can be an all-in-one product) a toothbrush and toothpaste. Hygiene kits are automatically refreshed at no cost or when a detainee requests one. Hand sanitizers are available for use for the [Otero County Processing Center] detained population. Additional soap dispensers have been placed in the [Otero County Processing Center] housing units to reinforce the proper hand washing protocols. Cleaning crews, both contract staff and volunteer detainee workers, are using the proper disinfection chemicals when performing housing unit and common area cleaning.
Acosta Decl. ¶ 19. Plaintiffs also allege crowded conditions, but Otero “is at 60% of its normal capacity,” and officials monitor the housing unit populations daily to allow for social distancing as much practicable Id. ¶ 7. Recreation, meals, and other scheduled activities have also been adjusted to allow for social distancing. Id. ¶ 23. Detainees who present COVID-19 symptoms are referred to a medical provider for testing and separated from others. Id. ¶ 15. Confirmed COVID-19 cases are isolated and treated. Id. Asymptomatic detainees with known exposure to a confirmed case are placed in cohorts and monitored daily for 14 days. Id. ¶ 16. And new detainees are screened and separated from the general population for 14 days upon arrival. Id. ¶ 14.
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*9 The expert declarations Plaintiffs submitted do not assist them in showing that there are no adequate measures that can ensure they avoid exposure to COVID-19 while detained at Otero. Dr. Amon and Dr. Kalishman’s discussion on the conditions at Otero appear to be based solely on the descriptions provided in Plaintiffs’ declarations without any independent verification. See Amon Decl. ¶ 36 (“Based upon the declarations I reviewed, I have identified the following vectors of COVID19 infection at Otero County Processing Center.”); see Kalishman Decl. ¶ 21 (“In the congregate setting, described in Petitioners’ declarations, large numbers of people must share eating, hygiene, and sleeping facilities, leaving them vulnerable to transmission of this COVID-19.”). Dr. Schriro’s declaration provides only a generalized discussion of conditions at ICE facilities without providing any specific information addressing the current conditions at Otero. See Doc. 1-6 (Declaration of Dr. Dora Schriro). And Ms. Rucker’s affidavit provides her observations from a visit to Otero on January 21, 2020, months before the COVID-19 outbreak had taken hold and Otero’s prevention measures were put in place. See Doc. 1-10 (Affidavit of Nia Rucker). The Court finds that Plaintiffs have failed to show that there are no adequate measures to ensure they avoid exposure to COVID-19 while detained at Otero.
The Supreme Court has consistently held that detaining aliens to prevent them from absconding and ensuring that they appear for removal proceedings is a legitimate governmental purpose. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 520-22 (2003); Zadvydas, 533 U.S. at 690–91. Plaintiffs

have not shown that their detention at Otero is not rationally related to that legitimate governmental purpose or is excessive in relation to that purpose because they have failed to demonstrate that they have medical conditions that put them at a higher risk of serious illness or death should they contract COVID-19 and that there are no adequate measures that can ensure they avoid exposure to COVID-19 while detained at Otero. See Kingsley, 135 S. Ct. at 2473 (2015) (quoting Bell, 441 U.S. at 561). Accordingly, the Court finds that Plaintiffs have not shown a substantial likelihood of prevailing on the merits.
II. Plaintiffs Fail to show Irreparable Harm Unless the Injunction is Issued Plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Plaintiffs assert that they will suffer irreparable harm if they are not immediately released from Otero because they have medical conditions that put them at a higher risk of serious illness or death should they contract COVID-19, there are no adequate measures that can ensure they avoid exposure to COVID-19 at Otero, and Defendants have violated their constitutional rights by continuing to detain them despite being ill equipped to adequately protect them from COVID-19. Doc. 3 at 25– 26. As discussed in detail in the previous section of this Memorandum Opinion and Order, these assertions are without merit. Plaintiffs have not shown that they have medical conditions that put them at a higher risk of serious illness or death should they contract COVID-19 or that the safeguards and precautions in place at Otero are
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inadequate to prevent them from being exposed to COVID-19.
In essence, Plaintiffs are asking the Court to order their immediate release from Otero based on the possibility that they may suffer irreparable harm from COVID-19 should they contract it while detained there. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. Accordingly, the Court finds that Plaintiffs have not shown that they will suffer irreparable harm unless the injunction is issued.
Even if the Court were to order Plaintiffs’ immediate release, the Court cannot make the finding that they would not face the risk of contracting COVID-19 outside of Otero, when comparing the United States 1,031,659 COVID-19 cases to Otero County’s 5 COVID-19 cases. Compare CDC, Cases of COVID-19 in the United States, https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html (last visited April 30, 2020), with NMDH, COVID-19 in New Mexico, https://cvprovider.nmhealth.org/publicdashboard.html (last visited April 30, 2020).
III. Plaintiffs Fail to show that their Threatened Injury Outweighs the Harm that the Preliminary Injunction may cause the United States *10 Plaintiffs argue that their threatened injury outweighs any harm the injunction

would cause the United States because they will suffer irreparable harm from COVID-19 if not released from Otero and the harm to the United States is administrative because there are alternatives to detention such as release on conditions and bond. Doc. 3 at 27. Their argument is premised on having established that they will suffer irreparable harm from COVID-19 if not released. As explained in the previous section of this Memorandum Opinion and Order, Plaintiffs have not established irreparable harm. Accordingly, the Court finds that Plaintiffs have not shown that their threatened injury outweighs the harm that the injunction may cause the United States.
IV. Plaintiffs Fail to show that the Injunction, if issued, would Not Adversely Affect the Public Interest Plaintiffs argue that the injunction would benefit the public interest because they claim that their release from Otero would decrease the likelihood that they will contract COVID19 and take up valuable medical resources when being treated. Id. at 28. In making this argument, Plaintiffs incorrectly assume they are more vulnerable to COVID-19 at Otero and disregard their immigration histories and the fact that the “Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.” Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (collecting cases).
Plaintiff Fuentes has illegally entered the United States two times. Acosta Decl., Fuentes ¶¶ 2 and 7. Plaintiff Mejia has illegally entered and reentered the United States three times. Id., Mejia ¶¶ 2, 7 and 14.
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Based on this prior conduct by Plaintiffs, they have demonstrated that they have no respect for the United States’ immigration laws. Plaintiff Mejia also presents a risk of danger as he has a conviction for resisting arrest with force or violence. Id. ¶ 9. The public interest in enforcement of immigration laws is significant and so is the public interest in being protected from those who present a risk of danger. Releasing Plaintiffs would be contrary to public interest. Accordingly, the Court finds that Plaintiffs have failed to show that the injunction would not adversely affect the public interest.
CONCLUSION

A preliminary injunction of the type requested by Plaintiffs is an extraordinary remedy, and to obtain one Plaintiffs must show a substantial likelihood of prevailing on the merits; irreparable harm unless the injunction is issued; that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and that the injunction, if issued, will not adversely affect the public interest. Plaintiffs have not met their burden in establishing any of these factors. For the reasons explained in this Memorandum Opinion and Order, Plaintiffs’ Motion for a Temporary Restraining Order [Doc. 3] is DENIED.
IT IS SO ORDERED.

14

Jenkins v. SpCaualsdeing1,:S2l0ip-cCvo-p1y0(2601179)-WGY Document 164-5 Filed 05/06/20 Page 1 of 3

2019 WL 1228093 Only the Westlaw citation is currently available. United States District Court, D. Massachusetts.
Sean JENKINS, Petitioner, v.
Warden SPAULDING, Respondent.
Civil Action No. 19-10078-MPK |
Signed 02/22/2019
Attorneys and Law Firms
Sean Jenkins, Ayer, MA, pro se.
ORDER FOR REASSIGNMENT AND REPORT AND RECOMMENDATION
M. PAGE KELLEY, United States Magistrate Judge
*1 Pro se petitioner Sean Jenkins is in custody at FMC Devens, Massachusetts. He filed this Petition for Writ of Habeas Corpus pursuant 28 U.S.C. § 2241 seeking transfer to Puerto Rico. For the reasons set forth below, this Court orders the Clerk’s Office to reassign the case to a District Judge and recommends that the District Judge deny the petition and dismiss this action.
I. BACKGROUND On January 10, 2019, petitioner filed this habeas action on a form he filled out, seeking habeas relief pursuant to 28 U.S.C. § 2241. (#1.) This action was assigned to this court, pursuant to the Court’s Program for Random Assignment of Civil Cases to Magistrate Judges.
Petitioner is civilly committed to the custody of the United States Attorney General pursuant to 18 U.S.C. § 4246(d). See United States v. Jenkins, No. 5:16-hc-02229-BR (E.D.N.C. Feb. 28, 2017); see also #1 ¶ 4. Petitioner alleges that he is “in a hostile, abusive and racist environment” and seeks “return to Puerto Rico.” Id. ¶¶ 5, 15. On February 20, 2019, he filed a letter concerning the payment of the filing fee. (#4.)
II. DISCUSSION

Although Jenkins brings this petition under 28 U.S.C. § 2241, the rules governing petitions brought pursuant to
28 U.S.C. § 2254 may be applied. See Rule 1(b) of the
Rules Governing Habeas Corpus Cases Under Section 2254. Under Rule 4 of the Rules Governing Habeas Corpus
Cases Under Section 2254, the court is required to examine a petition, and if it “plainly appears from the face of the petition ... that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition....” Thus, the court has a duty to screen and summarily dismiss a habeas petition prior to any answer or other pleading when the petition “appears legally insufficient on its
face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). In considering whether Jenkins' petition clears this hurdle, the Court liberally construes his petition because he is proceeding
pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Habeas review under 28 U.S.C. § 2241 is appropriate if a person is “in custody in violation of the Constitution or
laws ... of the United States.” § 2241(c)(3). “A motion
pursuant to § 2241 generally challenges the execution of a federal prisoner’s sentence, including such matters as the administration of parole, computation of a prisoner’s sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.”
Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (emphasis in original).

Jenkins argues that he is in a “hostile, abusive and racist environment.” (#1 at 2.) He says that he is being “constantly abused by the staff” and that this constitutes cruel and unusual punishment. Id. at 6. His petition contains no other details about his claims.

Jenkins appears to be challenging the conditions of his confinement. This claim should be brought through a civil

rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that an individual aggrieved by a federal official’s violation of his constitutional rights can bring an action

for monetary relief). See

Kane v. Winn, 319 F. Supp.

2d 162, 213 (D. Mass. 2004) (“Although a habeas corpus

petition is the appropriate means to challenge the fact or

duration of incarceration, actions challenging the conditions

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

1

Jenkins v. SpCaualsdeing1,:S2l0ip-cCvo-p1y0(2601179)-WGY Document 164-5 Filed 05/06/20 Page 2 of 3

of confinement reside more in the heartland of civil actions
under 42 U.S.C. § 1983 (for state prisoners), Bivens, 403 U.S. 388, 91 S. Ct. 1999 (for federal prisoners), or some other non-habeas doctrine or statute.”) (internal quotations omitted). 1 Jenkins presently has an action pending under Bivens in this court, see Jenkins v. Spaulding, et al., C.A. No. 18-12359-MPK (filed Nov. 9, 2018), where he appears to complaint that his records have been tampered with, and as a result he has not been able to address issues with his treatment. Id., #1 at 3. Today, February 22, 2019, the court has permitted Jenkins to amend his pleadings to include details about how his constitutional rights have been violated by officials at FMC Devens. See C.A. No. 18-12359-MPK, #7. Jenkins can include in that action any complaints regarding the constitutionality of his conditions of confinement.
III. ORDER FOR REASSIGNMENT *2 For the foregoing reasons, this Court orders the Clerk’s Office to reassign this action to a District Judge for further proceedings.

V. REVIEW BY DISTRICT JUDGE The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b), any party who objects to these proposed findings and recommendations must file specific written objections thereto with the Clerk of this Court within 14 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made, and the basis for such objections. See Fed. R. Civ. P. 72. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P. 72(b) will preclude further appellate review of the District Court’s order
based on this Report and Recommendation. See Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999);
Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962
(1st Cir. 1997); Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993).

IV. RECOMMENDATION For the foregoing reasons, this Court also recommends that the District Judge deny the Petition for Writ of Habeas Corpus
pursuant 28 U.S.C. § 2241 and dismiss this action.

All Citations Slip Copy, 2019 WL 1228093

Footnotes

1 The First Circuit has said that where a prisoner seeks relief from conditions of confinement that would result in a reduction of his sentence, he should bring a habeas claim, and where he seeks relief from conditions

of confinement that would not reduce his sentence, he should bring a civil rights claim. See Gonzalez-

Fuentes v. Molina, 607 F.3d 864, 873-74 (1st Cir. 2010) (citing Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (observing that if an inmate is seeking a “quantum change in the level of custody—[including] outright freedom ... then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement,” and his remedy

is under civil rights law); Wilkinson v. Dotson, 544 U.S. 74, 85 (2005) (Scalia, J., concurring) (approving

of “quantum change” framework) ) (other citations omitted);

Brennan v. Cunningham, 813 F.2d 1, 4-5

(1st Cir. 1987) (holding that habeas claim was proper where a prisoner was challenging his termination from

a work release program that was “closely connected to [his] impending release”). For a thorough analysis of

case law concerning when conditions of confinement claims are properly brought as habeas corpus versus

civil rights claims, see 1 Hertz & Liebman, Federal Habeas Corpus Practice and Procedure § 9.1 n. 34 (7th

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

2

Jenkins v. SpCaualsdeing1,:S2l0ip-cCvo-p1y0(2601179)-WGY Document 164-5 Filed 05/06/20 Page 3 of 3

ed. 2017). Here, petitioner’s complaints about the dangers he is facing do not challenge the length of his confinement.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

3

Case 1:20-cv-10617-WGY Document 164-6 Filed 05/06/20 Page 1 of 1

ICE A

TOTAL DOUBLE BUNKS

33

HEIGHT FROM BOTTOM BUNK TO TOP BUNK 39”

SPACE BETWEEN BUNKS (VARIES)

36”- 44”

SPACE BETWEEN BUNKS & WALL (VARIES)

45”- 48”

SPACE BETWEEN BUNKS & TABLES (MOVABLE) 10’- 13’

SPACE BETWEEN BUNKS & PHONES (VARIES) 32”- 48”

SPACE BETWEEN PHONES (VARIES)

5’ - 6’

ICE A LAUNDRY DIMENSIONS

8’ 9” X 10’ 4”

ICE MEDICAL DIMENSIONS

14’ X 12’

ICE A VISITS DIMENSIONS

13’ X 10’

ICE A BATHROOM DIMENSIONS

18’ 7” X 35’ 4”

ICE A CLASSROOM DIMENSIONS

17’ 10” X 18’ 8”

ICE A REC. PEN DIMENSIONS

30’ X 54’

ICE A SINKS

8

ICE A SHOWERS

6 (includes 1 HP)

ICE A TOILETS

6

ICE A URINALS

3

ICE A DORM/DAYROOM DIMENSIONS

approx. 108’ x 48’

Case 1:20-cv-10617-WGY Document 164-7 Filed 05/06/20 Page 1 of 2
MODS 2 EAST

2 EAST DORM ROOM DIMENSIONS

30’ X 11’

BOTTOM BUNK TO TOP BUNK VARIES FROM 30”-36”

DISTANCE IN BETWEEN BEDS VARIES FROM 7”- 34”

DISTANCE ACROSS ROOM TO BEDS OR DESKS 78”-84”

(It should be noted that although dorms are same size, layout varies from one side to other)

2 EAST BATHROOM DIMENSIONS

21’ X 9’ (EACH)

TOILETS TOTAL

7 (includes 2 HP)

SINKS TOTAL

13

SHOWERS TOTAL

10 (includes 1 HP)

URINALS TOTAL

3

2 EAST HALLWAY DIMENSIONS

30’ X 7’

2 EAST DAYROOM DIMENSIONS

59’ X 30’

DISTANCE BETWEEN TABLES (MOVABLE)

APPROX. 5’ X 6”

2 EAST MEDICAL DIMENSIONS

N/A

( DETAINEES ARE TREATED AT HSU)

Case 1:20-cv-10617-WGY Document 164-7 Filed 05/06/20 Page 2 of 2
MODS REC YARD “L” SHAPED

 
 Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 1 of 34

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Plaintiffs-Petitioners, )

)

v.

)

)

STEVEN J. SOUZA, Superintendent of )

Bristol County House of Correction )

in his official capacity,

)

)

Defendant-Respondent. )

)

CIVIL ACTION NO. 20-10617-WGY

YOUNG, D.J.

May 12, 2020

MEMORANDUM OF DECISION

I. INTRODUCTION

The Constitution dictates that the government reasonably

safeguard those in its custody, for the power to incarcerate

implies the duty to protect. How far does that duty go amidst

the global pandemic of the COVID-19 virus? That is the enigma

this Court, like others across the nation, has grappled with in

this case. A class of civil immigration detainees held in the

Bristol County House of Correction, citing this unparalleled

health crisis, press this Court to release them from confinement

in tight and allegedly unsanitary quarters. The government

refuses to play ball.

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 2 of 34
The Court has matched the unusual health emergency with an unusual procedural maneuver. Before addressing the merits of the petition, the Court relied on its inherent authority expeditiously to review bail applications for all of the detainees in the class, one by one, and released almost a third of them to house arrest under strict conditions. These releases have meaningfully reduced the crowding at the detention center and, one hopes, hindered the virus’ spread. The Court then turned to the pending motion for a preliminary injunction and, after briefing and oral argument, preliminarily ordered the government (1) to test all detainees and staff who come into contact with them; and (2) not to admit any more detainees to this facility.1 This memorandum lays out the Court’s reasoning.
As explained more fully below, the Court reaches three essential conclusions. First, withholding this preliminary injunction would likely cause the detainees irreparable harm because some number of them would get seriously ill or die. Second, the government’s response likely amounts to deliberate indifference to a substantial risk of serious harm to the detainees’ health. This deliberate indifference is proven by the government’s near-blanket opposition to the release of
1 The preliminary injunction was issued orally at the hearing held by video conference on May 7, 2020. ECF No. 168. The full order is recorded at the end of this memorandum. The Court modified the order on May 11, 2020. ECF No. 172.
[2]

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detainees throughout the bail process (though it did somewhat reduce the population through limited bond releases and deportations), as well as by its minimal efforts at testing and contact tracing.
Third, the balance of the equities and the public interest weigh in favor of the injunction. In so finding, the Court notes that this injunction does not prohibit the government’s (and the public’s) two primary interests in enforcing the immigration laws -- deporting those unlawfully present and confining those who are dangerous or flight risks. Yet, to the extent it reduces the risk of an uncontainable outbreak in the facility, the injunction secures the safety of the detainees, the guards and other staff, their families, and ultimately the public at large. The scale thus tips lopsidedly toward the interim equitable relief ordered by the Court. II. PROCEDURAL BACKGROUND
The named plaintiffs-petitioners are two of 148 individuals (the “Detainees”) detained by Immigration and Customs Enforcement (“ICE”) on civil immigration charges who, at the start of this litigation, were held at the Bristol County House of Correction (“BCHOC”) in North Dartmouth, Massachusetts. Pet. Writ Habeas Corpus (“Pet.”) ¶ 1, ECF No. 1; Opp’n Mot. Temporary Restraining Order (“Opp’n TRO”), Ex. A, Aff. Sheriff Thomas H. Hodgson (“Hodgson Aff.”) ¶ 6(o), ECF No. 26-1. On March 27,
[3]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 4 of 34
2020, the Detainees filed a purported class action suit alleging, as relevant here, that the conditions of their confinement violated their due process rights and seeking release. See generally Pet. The gravamen of the complaint was that the facility was simply too crowded to practice social distancing in accordance with ubiquitous medical advice, id. ¶¶ 67-68, and that the conditions were otherwise unhygienic, id. ¶ 70. The Detainees also filed a motion for class certification, ECF No. 13, and a motion for a temporary restraining order, ECF No. 14, which the Court converted into a motion for a preliminary injunction at the initial hearing held on March 30, 2020.2
At a hearing on April 2, 2020, the Court provisionally certified five subclasses, ECF No. 36, and later that day put together a list (using information from a spreadsheet helpfully provided by the respondent, or “the government”) of twelve Detainees with no criminal history or pending criminal charges, ECF No. 38. The next morning, counsel for the government informed the Court that ICE would voluntarily release six of those individuals on Orders of Supervision. At a hearing that same day, the government told the Court that ICE would not voluntarily release anyone else. Tr. Hr’g (Apr. 3, 2020) 6:4-8,
2 All hearings in this matter have been held remotely by video conference in light of the danger posed by COVID-19.
[4]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 5 of 34
ECF No. 48. The Court ordered bail for three Detainees at that hearing and requested that the parties supply (jointly or separately) a list of fifty names to consider for bail. Id. at 8, 15-17. Neither party opted to select fifty candidates. On April 8, 2020, the Court certified the general class of presently incarcerated Detainees and explained the basis for its bail procedures. Savino v. Souza (Savino I), __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020).
Over the next several weeks, the Court received briefing from the parties relating to each Detainee’s criminal and medical histories, as well as other pertinent information, and assessed each one individually. True to its word, ICE systematically opposed bail for every Detainee after the initial six. For each group the Court considered, the government stated: “It is ICE’s position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC.” ECF Nos. 50, 58, 67, 75, 79, 80, 85, 88, 94, 102, 105, 111, 116.3 The Court ruled on the bail applications that were relatively clear cases -- whether granting or denying --
3 The only cracks in this wall of refusal were two Detainees whom the government offered as substitutes in place of individuals the Court had previously ordered released on bail. See ECF Nos. 51, 63.
[5]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 6 of 34
and took the rest under advisement.4 Between the filing of the
case and the preliminary injunction, six Detainees were released
by ICE on Orders of Supervision, forty-four were granted bail by
this Court, fifteen were released on bond through the
immigration courts, fifteen were (or were soon scheduled to be)
deported, and five new individuals were added by ICE. Of the
148 Detainees held at BCHOC at the start of the litigation,
there remained 80 after the Court’s last bail order on May 5,
2020. ECF No. 147; Opp’n Mot. Prelim. Inj. (“Opp’n”) 5, ECF No.
4 Detention for immigrants awaiting deportation is roughly equivalent to denying bail to a person accused of crime. In both cases the goals are the same: to minimize danger to the community and curtail the risk of flight. As an experienced trial judge at both the state and federal levels, I have been struck by the fact that the great bulk of these 148 detainees -not all but most -- would have been admitted to bail on terms were they American citizens facing criminal charges. The fact I did not release more is due solely to the proper respect I owe to the administrative hearing officers within the executive.
If this small cohort is at all reflective of the nearly thirty thousand detainees in ICE custody across the nation, it would appear we are spending millions of our national treasure to lock up thousands of people who might better be released on strict bail conditions without impairing the safety of our citizens or the operations of our government. See Detention Statistics, https://www.ice.gov/detention-management (last accessed May 11, 2020) (listing 28,865 immigration detainees in custody as of May 2, 2020); see also ICE, U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report 5, 8, https://www.ice.gov/sites/default/files/documents/Document/2019/ eroReportFY2019.pdf (stating that 50,165 individuals, on average, were daily in ICE custody in fiscal year 2019, with an average length of stay of 34.3 days).
[6]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 7 of 34
164; id., Ex. A, Third Decl. Steven Souza (“Third Souza Decl.”) ¶ 9, ECF NO. 164-1.
The Court received briefing on the motion for a preliminary injunction. Pls.’ Suppl. Mem. Supp. Mot. Prelim. Inj. (“Pls.’ Suppl. Mem.”), ECF No. 150; Opp’n. After a hearing held on May 7, 2020, the Court orally issued the preliminary injunction and explained its reasoning. ECF No. 168. This memorandum of decision further explicates the basis for the preliminary injunction. See Fed. R. Civ. P. 52(a). III. THRESHOLD ISSUES
Before embarking on the preliminary injunction discussion, the Court briefly detours to address several threshold hurdles raised by the government. First, the government argues that the Detainees lack constitutional standing for this preliminary injunction. Opp’n 27-28. The Court disagrees for the reasons articulated in its prior opinion certifying the class. Savino I, 2020 WL 1703844, at *4; see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”).
Second, the government argues that the Detainees cannot challenge the conditions of confinement in a habeas action, which is limited to challenges to the fact or duration of
[7]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 8 of 34
confinement. Opp’n 19-20 (quoting Jenkins v. Spaulding, No. 1910078-MPK, 2019 WL 1228093 (D. Mass. Feb. 22, 2019) (Kelley, M.J.); Kane v. Winn, 319 F. Supp. 2d 162, 213-15 (D. Mass. 2004)). Even were habeas actions so limited,5 the Detainees have styled their action as both a habeas petition under 28 U.S.C. § 2241 and a complaint seeking declaratory and injunctive relief. Pet. 1. That being so, a cause of action for equitable relief relating to their conditions of confinement is available wholly apart from habeas. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231-33 (10th Cir. 2005). Moreover, this preliminary injunction is not itself habeas relief, but rather “interim equitable relief [whose purpose] is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.” Trump v. International Refugee Assistance Project (IRAP), 137 S. Ct. 2080, 2087 (2017) (citing University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). Thus, the Court does not see why this preliminary
5 The Court need not decide whether this is indeed the law in the First Circuit, and if so whether that rule applies to detainees in federal custody. Compare Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873-74 (1st Cir. 2010) (prisoners’ challenge to conditions of state confinement must be brought under 42 U.S.C. § 1983, not habeas), with United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (“If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”), and Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir. 1987); cf. Aamer v. Obama, 742 F.3d 1023, 1035-38 (D.C. Cir. 2014).
[8]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 9 of 34
injunction must stick within habeas’ fact-of-confinement domain.6 “Once invoked, the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538 (2011) (omission in original) (internal quotation marks and citations deleted).
Finally, the government contends that 8 U.S.C. § 1252(f) bars the Court from issuing any classwide injunctive relief. Opp’n 25-27. The Supreme Court has observed that section 1252(f) “prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221–1231, but specifies that this ban does not extend to individual cases.” Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 481-82 (1999). That provision, however, does not apply here for two reasons.
First, section 1252(f)(1) does not apply to “individual alien[s] against whom [immigration] proceedings . . . have been initiated” -- a category that embraces all class members here.
6 The Supreme Court has stated that “[i]f a request for a permanent injunction does not sound in habeas, it follows that the lesser included request for a temporary stay (or preliminary injunction) does not either.” Nelson v. Campbell, 541 U.S. 637, 647 (2004). Yet the Court is unaware of a case stating that when a permanent injunction does sound in habeas (as here, given that the petitioners seek release), the Court’s equitable powers in fashioning an appropriate preliminary injunction are constrained.
[9]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 10 of 34
See Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). Second, section 1252(f)(1) denies this Court the “jurisdiction or authority to enjoin or restrain the operation” of certain immigration statutes. 8 U.S.C. § 1252(f)(1). Yet the Court’s preliminary injunction simply requires COVID-19 testing and halts admissions of new detainees to a particular facility, matters as to which the immigration statutes are silent. The statute does say that “[t]he Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal,” 8 U.S.C. § 1231(g)(1), but the First Circuit has explained that “section 1231(g) fails to ‘specify’ that individualized transfer decisions are in the Attorney General’s discretion.” Aguilar v. U.S. ICE, 510 F.3d 1, 20 (1st Cir. 2007). To the extent section 1231(g)(1) grants transfer authority, merely taking one facility off the list of possible detention centers while litigation ensues does not “enjoin or restrain the operation” of the statute absent some showing that the Attorney General cannot arrange for a detainee to be housed in another appropriate place.
Having cleared these threshold obstacles, the Court moves on to discuss the grounds for its preliminary injunction.
[10]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 11 of 34
IV. THE PRELIMINARY INJUNCTION A. Legal Standard “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.” IRAP, 137 S. Ct. at 2087. The “purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (quoting Camenisch, 451 U.S. at 395 (1981). It “serves as an equitable policing measure to prevent the parties from harming one another during the litigation; to keep the parties . . . as far as possible in the respective positions they occupied when the suit began.” Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 15 (1st Cir. 2009) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953) (Frank, J.)).
“To secure a preliminary injunction, a plaintiff must show: ‘(1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between the injunction and the public interest.’” NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st Cir. 2020) (quoting Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)). “[T]he first two factors, likelihood of
[11]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 12 of 34
success and of irreparable harm, [are] ‘the most important’ in the calculus.” Bruns v. Mayhew, 750 F.3d 61, 65 (1st Cir. 2014) (quoting González–Droz v. González–Colón, 573 F.3d 75, 79 (1st Cir. 2009)). “[T]he measure of irreparable harm is not a rigid one; it has been referred to as a sliding scale, working in conjunction with a moving party’s likelihood of success on the merits,” such that a greater likelihood of success on the merits permits “somewhat less” of a showing of irreparable harm. Vaquería Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009) (quoting EEOC v. Astra USA, Inc., 94 F.3d 738, 743 (1st Cir. 1996)).
B. Likelihood of Irreparable Harm The Court presumes that, in ordering the release on bail of a portion of the Detainees, it has substantially reduced the risk of infection for those who remain. Yet the threat persists. As of May 7, when the preliminary injunction was issued, the record indicates that eleven BCHOC staff members, one ICE detainee, and one state inmate had tested positive for COVID-19. See Pls.’ Suppl. Mem. 8 & n.6.7 Twenty-four ICE
7 See also Bristol County Sheriff’s Office (@BristolSheriff), Twitter (May 5, 2020, 4:22 PM), https://twitter.com/BristolSheriff/status/1257767668561489921 (last accessed May 8, 2020) (press release stating that a state inmate tested positive for COVID-19, seven staff members who tested positive were away recovering, and four staff members who tested positive had returned to work).
[12]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 13 of 34
detainees had tested negative (six refused to be tested), and the rest had never been tested. Decl. Oren Sellstrom Supp. Pls.’ Mot. Prelim. Inj. (“First Sellstrom Decl.”), Ex. B, Inmate Testing Chart (“Testing Chart”) (May 4, 2020) (listing five negative tests of ICE detainees); Third Souza Decl. ¶ 5 (adding nineteen more). As of April 28, about twenty-two staff members had tested negative. Decl. Oren Sellstrom Supp. Pls.’ Mot. Prelim. Inj. (“Second Sellstrom Decl.”), Ex. D, Dep. Steven Souza (“Souza Dep.”) 288, ECF No. 151-4. According to the Special Master’s Weekly Report filed in the Supreme Judicial Court on May 4 regarding state inmates, BCHOC had administered just twenty-three COVID-19 tests, nineteen of which were for inmates. Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, SJC-12926, Special Master’s Weekly Report (May 4, 2020) App. 4, available at https://www.mass.gov/doc/sjc12926-special-masters-weekly-report-5420/download (last accessed May 8, 2020). In sum, the virus is clearly present in BCHOC, though its current prevalence is unknown.
The Court acknowledges and commends the significant steps that BCHOC has taken in order to prevent the spread of COVID-19 at the facility and treat anyone infected. The Centers for Disease Control and Prevention (“CDC”) has issued guidance for correctional facilities and detention centers. CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
[13]

Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 14 of 34
Correctional and Detention Facilities (“Interim Guidance”) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf. ICE has also issued a document requiring every facility housing immigration detainees to, among other standards, comply with the CDC’s recommendations. ICE, COVID-19 Pandemic Response Requirements (“Pandemic Response Requirements”) (Apr. 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCle anFacilities.pdf. The government vigorously asserts that BCHOC has followed all of these recommendations. Def.’s Mem. Supp. Mot. Stay Further Releases 12-14, ECF No. 83. The Court previously noted several protective measures BCHOC has put in place since February, including restricting contact with outsiders, performing temperature screenings, and splitting up detainees during meals and recreation. Savino I, 2020 WL 1703844, at *1-2. The Court recognizes the commendable efforts of the BCHOC staff, who have been operating in difficult and risky conditions where much is unknown. It is necessary to point this out given that, while the Court and the attorneys have been conferring remotely due to the pandemic, the dedicated professionals at BCHOC continue to perform their duties on site. That is no small thing.
Nonetheless, there remain critical safety gaps that establish a likelihood of irreparable harm in the absence of
[14]

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preliminary equitable relief. Testing of both staff and detainees has been minimal, so the real infection rate is a mystery. Measures to isolate the carriers and prevent the disease’s spread cannot succeed without testing. The CDC has cautioned for some time that even asymptomatic individuals may be infected with COVID-19 and spread the virus. See, e.g., Souza I, 2020 WL 1703844, at *2 (citing CDC, Social Distancing, Quarantine, and Isolation (reviewed Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html). Indeed, asymptomatic spreaders have been called the “Achilles’ heel” of prevention strategies.8 Recognizing this weakness, the “Testing Blueprint” released by the White House, CDC, and Food and Drug Administration (“FDA”) recommends that “congregate living settings” should “actively” perform “sentinel monitoring,” which “involves targeted, voluntary testing of asymptomatic individuals.”9 The logic is simple. As the Director-General of the World Health Organization put it, “[y]ou cannot fight a fire blindfolded.
8 Monica Gandhi, Deborah S. Yokoe, & Diane V. Havlir, M.D., Asymptomatic Transmission, the Achilles’ Heel of Current Strategies to Control Covid-19, New England J. of Medicine (Apr. 24, 2020), https://www.nejm.org/doi/10.1056/NEJMe2009758.
9 White House, CDC & FDA, Testing Blueprint 3 & n.1 (Apr. 27, 2020), https://www.whitehouse.gov/wpcontent/uploads/2020/04/Testing-Blueprint.pdf.
[15]

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And we cannot stop this pandemic if we don’t know who is infected.”10
A related problem is the “insufficient and ad hoc” contact tracing of Detainees and BCHOC staff who may have interacted with COVID-19-positive individuals. Pls.’ Suppl. Mem. 11. The White House, CDC, and FDA advise that “contact tracing can help prevent or contain outbreaks, especially within . . . congregate living settings in which the residents are particularly vulnerable to rapid spread.” Testing Blueprint 6. “Contact tracing . . . is a key strategy for preventing further spread of COVID-19.”11 Particularly in “congregate living settings,” the CDC stresses, contact tracing “is a priority.”12
While BCHOC made some efforts at contact tracing for employees who tested positive, there were no follow-up tests ordered for those with whom the employees may have come into contact and no written policy related to contact tracing at all. Souza Dep. 279-80, 288. Nor is there any evidence that those
10 World Health Organization, WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 16, 2020), https://www.who.int/dg/speeches/detail/who-director-general-sopening-remarks-at-the-media-briefing-on-covid-19---16-march2020 (“We have a simple message for all countries: test, test, test.”).
11 CDC, Contract Tracing: Part of a Multipronged Approach to Fight the COVID-19 Pandemic (“CDC Contact Tracing”) 1 (Apr. 29, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/php/principles-contact-tracing-booklet.pdf.
12 Id. at 2.
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Case 1:20-cv-10617-WGY Document 175 Filed 05/12/20 Page 17 of 34
who came into contact with COVID-19-positive employees or detainees practiced quarantining as if they were symptomatic themselves, as the CDC expressly recommends. CDC, FAQs for Administrators, Staff, People Who Are Incarcerated, and Families (“CDC FAQs for Detention Centers”) (Apr. 9, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/316368A_FS_COVID19_CorrectionDetention.pdf (“Close contacts of the sick person (who have been within 6 feet of the sick person or have had direct contact with infectious droplets, such as from a cough or squeeze) should selfquarantine at for 14 days home and follow CDC recommended steps for people who are sick with COVID-19 symptoms.”).
Of particular concern is the contradictory evidence in the record regarding monitoring of those Detainees who are especially vulnerable to COVID-19.13 In an affidavit dated April 2, 2020, BCHOC’s medical director averred that “[w]e are also monitoring and reviewing all detainees/inmates who are known to have chronic disease or other comorbidities which would make them more susceptible to a COVID-19 infection.” Aff. Nicholas
13 See CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html (last accessed May 8, 2020) (“Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.”) (emphasis in original).
[17]

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J. Rencricca, MD, PhD ¶ 20. The sheriff swore to similar effect. Hodgson Aff. ¶ 6(k). Yet when asked in depositions conducted nearly a month later, BCHOC’s nursing supervisor for ICE detainees and its superintendent denied that vulnerable detainees were subject to special monitoring or protocols. Sellstrom Decl., Ex. B, Dep. Nelly Floriano (Rough Tr.) 95-96, ECF No. 151-2; Souza Dep. 81-82. Moreover, ICE requires detention centers to notify ICE “12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19.” Pandemic Response Requirements 5-6. ICE says it will then “review the case to determine whether continued detention is appropriate,” id. at 14. The record is devoid of any such notification or consideration for release. See Souza Dep. 23637; Pls.’ Suppl. Mem. 12 n.9. This is obviously worrying.
Additionally, the chances of a more dangerous outbreak would rise were additional detainees to be added to the mix. ICE acknowledges that “[t]he combination of a dense and highly transient detained population presents unique challenges for ICE efforts to mitigate the risk of infection and transmission.” Opp’n TRO, Ex. 2, Mem. from Enrique M. Lucero, ICE, to Detention Wardens & Superintendents 1 (Mar. 27, 2020), ECF No. 26-2; see also Interim Guidance 2 (listing “transfer of incarcerated/detained persons between facilities and systems”
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and “admitting new entrants” as examples of “many opportunities for COVID-19 to be introduced into a correctional or detention facility”); CDC FAQs for Detention Centers 1 (“Because of close contact and the number of people in correctional and detention facilities (including prisons and jails), staff and people who are incarcerated are at greater risk for the spread of germs.”). Barring the government from adding new detainees ameliorates the twin problems of detainee density and transience, thus lowering the chances of further spread.
The Court does not disagree with the government’s protestation that “[i]rreparable harm cannot be assumed from the fact of the pandemic alone.” Opp’n 12. It is the government’s response to the pandemic that matters. On the evidence in the record, it appears highly likely that serious harm would have followed from the Court’s inaction. Had the Court stayed its hand, little or no progress would have been made at BCHOC towards accurately determining the virus’ presence among the detainees and staff and towards effectively separating potential carriers from others -- and it is likely that the gains in density reduction achieved through the bail orders would be jeopardized by new arrivals. This is not a case where “the defendants implemented many of th[e] measures [in the preliminary injunction] before the plaintiffs even filed the complaint.” Swain v. Junior, __ F.3d __, No. 20-11622-C, 2020
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WL 2161317, at *5 (11th Cir. May 5, 2020) (per curiam). The government has resisted widespread testing and has continued to accept new detainees. Accordingly, the Court found that the Detainees showed a likelihood of irreparable harm.
C. Likelihood of Success on the Merits The Detainees’ claim on the merits is that the conditions of their confinement violate the Due Process Clause of the Fifth Amendment. Pet. ¶¶ 98-105. Underlying their claim is the cardinal principle that when the government “so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses . . . the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). The barebones constitutional demand on the government is “to refrain at least from treating a pretrial detainee with deliberate indifference to a substantial risk of serious harm to health.” Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) & Farmer v. Brennan, 511 U.S. 825, 835 (1994)). “Proof of deliberate indifference requires a showing of greater culpability than negligence but less than a purpose to do harm,” id. (citing Farmer, 511 U.S. at 835), “and it may
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consist of showing a conscious failure to provide medical services where they would be reasonably appropriate,” id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “To show such a state of mind, the plaintiff must provide evidence that the defendant had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Leite v. Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018) (quoting Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018)) (further citation and internal quotation marks omitted). “This standard, requiring an actual, subjective appreciation of risk, has been likened to the standard for determining criminal recklessness.” Id. at 53 (quoting Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)). Courts generally apply the same standard for civil immigration detainees as for pre-trial detainees. See E. D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019) (stating that “the legal rights of an immigration detainee [are] analogous to those of a pretrial detainee” and collecting cases of other circuits).
There is little doubt that the Detainees would likely demonstrate at trial a substantial risk of serious harm to their health arising from their conditions of confinement amidst the COVID-19 outbreak. The CDC states that “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread
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once introduced.” Interim Guidance 2. “Social distancing,” the CDC explains, “is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic).” Id. at 4. Social distancing “is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” Id. Were it not for the Court’s bail orders and preliminary relief - all of which expire upon a ruling on the merits, and thus cannot decide the merits -- the Detainees would be packed together in close quarters where social distancing is impossible. See Savino I, 2020 WL 1703844, at *2 (describing close living quarters before bail releases). This threat would be compounded by lackluster testing and contact tracing, as well as inattention to those with special vulnerabilities. The virus is present in BCHOC and is hardly going to stop in its tracks.
There is still much to learn about the COVID-19 virus and its confoundingly uneven assault on humanity.14 Though COVID-19 surely poses a greater threat to those with CDC-recognized heightened risk factors, “it cannot be denied that the virus is gravely dangerous to all of us.” Savino I, 2020 WL 1703844, at
14 James Hamblin, Why Some People Get Sicker Than Others, The Atlantic (Apr. 21, 2020), https://www.theatlantic.com/health/archive/2020/04/coronavirusimmune-response/610228/.
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*7.15 Given what is now (preliminarily) known about the virus
and the facts on the ground in BCHOC, the Detainees would likely
show a substantial risk of serious harm resulting from their
confinement in such conditions.
The more difficult question is whether the Detainees have
shown that the government is likely deliberately indifferent to
that risk.16 The staff at BCHOC have admirably taken significant
steps toward protecting the Detainees from COVID-19.
Nonetheless, the Detainees have demonstrated at least three
cavernous holes in the government’s mitigation strategy -- holes
it has obstinately refused to plug throughout this litigation.
15 See Nancy Chow et al., CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, 69 Morbidity & Mortality Weekly Report 382, 382-84 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6913e2-H.pdf.
16 At oral argument, counsel for the Detainees suggested that the deliberate indifference standard must be satisfied only in the Eighth Amendment context, not for civil detainees whose claim lies in the Fifth Amendment’s due process right. The distinction matters little, however, because the First Circuit has stated that “[t]he two standards are not all that far apart.” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011). Several circuits now hold, after Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), that the inquiry under the Due Process Clause is purely objective, with a subjective inquiry reserved for the Eighth Amendment context. See Banks v. Booth, No. 20-849(CKK), 2020 WL 1914896, at *6 (D.D.C. Apr. 19, 2020) (citing cases). Yet the First Circuit has continued to conduct the subjective inquiry in due process cases even after Kingsley. See MirandaRivera v. Toledo-Davila, 813 F.3d 64, 74 (1st Cir. 2016); Couchon v. Cousins, No. 17-10965-RGS, 2018 WL 4189694, at *6 (D. Mass. Aug. 31, 2018) (Stearns, J.).
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See Farmer, 511 U.S. at 846 (holding that, in determining deliberate indifference, district court has “discretion” to consider “developments that postdate the pleadings and pretrial motions”).
First, the government has steadfastly objected to the release on bail of all Detainees after the first six (and two others it wished to substitute for two whom the Court released). The exigencies of the moment demand flexibility. Both state and federal governments have recognized the need to release some incarcerated individuals in order to allow for minimal social distancing. Congress responded to the pandemic by authorizing the Bureau of Prisons to exceed the statutory maximum period of home confinement if the Attorney General makes a finding of “emergency conditions.” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020). The Attorney General has found such an emergency.17 The Massachusetts Supreme Judicial Court has ordered that, “[t]o decrease exposure to COVID-19 within correctional institutions, any individual who is not being held
17 See Memorandum of Attorney General William Barr to Director of Bureau of Prisons (Apr. 3, 2020), https://www.justice.gov/file/1266661/download; Memorandum of Attorney General William Barr to Director of Bureau of Prisons (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.p df (directing the Bureau of Prisons “to prioritize the use of [its] various statutory authorities to grant home confinement to inmates seeking transfer in connection with the ongoing COVID-19 pandemic”).
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without bail . . . and who has not been charged with an excluded offense (i.e., a violent or serious offense . . .) is entitled to a rebuttable presumption of release.” Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 435, 142 N.E.3d 525, 530 (2020). ICE itself requires that “[e]fforts . . . be made to reduce the population to approximately 75% of capacity.” Pandemic Response Requirements 13. As mentioned above, ICE also requires that BCHOC report the identities of vulnerable detainees and promises to “review the case to determine whether continued detention is appropriate.” Id. at 14. The Court has not seen evidence of any reporting to ICE or of a review of Detainees at BCHOC for possible release.
The directives of the Attorney General, the Supreme Judicial Court, and ICE’s nationwide policy do not encapsulate the Constitution’s demands in this crisis. The Court mentions these policies for a different reason: they highlight that diverse governmental actors see the need for serious thought and actual efforts to release those whose confinement is not worth the cost. In this case, the authorities have displayed the contrary mindset. Where elasticity is vital, they are rigid; where life hangs upon a carefully drawn line, they opt for nearblanket incarceration. That is evidence of deliberate indifference. See Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011) (affirming preliminary injunction issued after
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finding of deliberate indifference stemming from prison authorities’ “composite of delays, poor explanations, missteps, changes in position and rigidities . . . taken to an extreme”); Pesce v. Coppinger, 355 F. Supp. 3d 35, 47 (D. Mass. 2018) (Casper, J.) (issuing preliminary injunction on basis of likelihood of deliberate indifference when prison authorities “implemented a blanket policy prohibiting the use of methadone treatment . . . without any indication that they would consider [the plaintiff’s] particular medical history and prescribed treatment in considering whether departure from such policy might be warranted”).
In fairness, ICE has made some headway on its own. Through a combination of deportations, bond releases by immigration officials, and the six releases on Orders of Supervision, ICE has managed to transfer about thirty individuals out of BCHOC since the start of this litigation (though it has also added five in). Yet the record tends to show that the government never formulated a plan to determine a safe population level or how to reach that mark. Souza Dep. 231-34. The few bond releases were conducted “in the normal course,” not as part of a strategy to reduce the density of detainees, and even those dried up in mid-April. Def.’s Input Apr. 22 List 2, ECF No. 111. Deportations are always a slow business and the pandemic has introduced new complexities. It has been apparent from the
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start that these mechanisms alone would not reduce the population to a density that could safely withstand the COVID-19 onslaught. The government was indifferent.
When this Court forced individual bail applications upon the government, it resisted all of them. Day in and day out, the Court was told that “[i]t is ICE’s position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC.”18 Opposition was understandable for some of the forty-four whom the Court admitted to bail, but at least twenty-five of those had either no criminal records or minimal or nonviolent ones (e.g., fraud, operating under the influence, larceny, drug possession, or failure to appear) along with mitigating circumstances that indicated little continued threat to the public. Several also had health conditions elevating their risk from the virus. ICE is free to disagree with this Court’s determination regarding this or that individual’s aptness for release. A wholesale blockade on bail, however, cannot be justified when the government proffers no alternative method of reducing the population to a safe number.
18 That refrain calls to mind “Bartleby, the Scrivener,” who met every reasonable request with a firm “I would prefer not to.” Herman Melville, The Piazza Tales 51-52 (1856).
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The government began this litigation suggesting, contrary to all known expert guidance, that social distancing was unnecessary because the virus could somehow be kept out of BCHOC. Savino I, 2020 WL 1703844, at *4 n.7. Even after the fallacy of this view became apparent, as eleven staff members and one Detainee tested positive, the government continued to argue that “BCHOC is not like the world at large” since it “is able to control who comes into its facility, where they go, and what steps are taken to screen such individuals. Social interaction, the primary focus of the social distancing recommendations, is much more limited at BCHOC than in the outside world.” Opp’n 29. This thinking flies in the face of the CDC’s direct warnings that detention centers are hardly impregnable fortresses and that, in fact, they are more susceptible to outbreaks once the virus penetrates. Interim Guidance 2 (“There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress . . . .”); id. (“Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.”). The government’s purported rationale for refusing to work toward a safe population level was beyond “the realm of reason.” Kosilek
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v. Spencer, 774 F.3d 63, 92 (1st Cir. 2014) (en banc) (quoting Battista, 645 F.3d at 454).
The other acute flaws in the government’s prevention strategy are the lack of testing and contact tracing. The record indicates that BCHOC tested no Detainees before April, five in April, and at least twenty on May 1 (following a violent clash between Detainees and staff that broke out, it seems, over an effort to test certain Detainees). Testing Chart; Third Souza Decl. ¶ 5. Yet it is apparent that many Detainees and staff have not yet been tested; nor does the record demonstrate adequate contact tracing. See supra IV.B (discussing evidence of testing and contact tracing). Without robust testing and contact tracing, the spread of the virus cannot be known or contained.19 Keeping individuals confined closely together in the presence of a potentially lethal virus, while neither knowing who is carrying it nor taking effective measures to find out, likely displays deliberate indifference to a substantial risk of serious harm. That is what the evidence shows here.
19 See Testing Blueprint 3 (recommending “targeted, voluntary testing of asymptomatic individuals” in “congregate living settings” to assess and contain potential spread); CDC Contact Tracing 1-2 (“Contact tracing . . . is a key strategy for preventing further spread of COVID-19,” and “is a priority” in “congregate living settings.”).
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On these facts, taken together, the Court found that the Detainees would likely succeed on the merits of their due process claim.
D. Balance of the Hardships and the Public Interest The Supreme Court has stated in the immigration context that the final two factors -- “assessing the harm to the opposing party and weighing the public interest” -- typically “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Accordingly, the Court will analyze these factors together. The hardship caused to the Detainees by remaining in unsafe conditions needs no further elaboration. Moreover, the Supreme Court has noted that “[o]f course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Id. at 436. Thus, allowing harm to befall the Detainees is contrary to the public interest as well.
On the other side of the scale, this preliminary injunction causes minimal hardship to the government or injury to the public. The primary interests that the government (and the public) have in operating this detention system are twofold: ensuring the deportation of those unlawfully present and confining those deportable individuals who may be dangerous to the public. This preliminary injunction does not meaningfully
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impede either of these objectives, since it neither prohibits the government from deporting any Detainee nor prevents it from confining a new individual in a different facility.20 The hardship to the government here, such as it is, boils down to providing tests. That burden pales in comparison to the public health benefits of thwarting the spread of COVID-19 within this detention center. Indeed, the public has a powerful interest in ensuring that there is not an outbreak within the detention center that is then primed to spread via the staff to the wider community.
This latter point is paramount. The government’s “custodial duty” has both “inward” and “outward” aspects: that is, the government must guard the health and safety of those incarcerated within its facility, as well as protect the outside public from dangerous detainees. United States v. Volungus, 595 F.3d 1, 8 (1st Cir. 2010). In one sense, this case exposes the tension between those dual responsibilities. The Detainees legitimately complain of unsafe crowded quarters amidst the COVID-19 pandemic and demand release, while the government -just as legitimately -- objects that many of the petitioners are too dangerous to let out. The Court has sought to balance these considerations by making individualized bail determinations,
20 There is no evidence in the record suggesting that ICE has nowhere else to put new detainees other than BCHOC.
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releasing to house arrest enough detainees as to hamper the virus’ spread but not those who pose real danger to the public.
Yet the dichotomy is somewhat misleading here. Even the government’s “outward” protective duties of custody, those it owes to the public at large, are jeopardized by locking up as many inmates as possible. The virus, if allowed to thrive in the detention centers, will migrate back into our neighborhoods. At least eleven officers or other staff, one immigration detainee, and one state inmate at Bristol County House of Correction have already tested positive for COVID-19; many others have yet to be tested. Employees returning to their homes after their shifts may expose their families, friends, bus drivers, cashiers, and doctors. The chain of infection thus grows. Were the government to loose an uncontainable viral outbreak from within its detention centers, it would betray its duty to the public, not just to the detainees. Seen in this light, the government’s “inward” and “outward” custodial duties converge upon the need to deny the virus a habitat inside the facility. This convergence suggests that the balance of hardships and the public interest weigh heavily in favor of a preliminary injunction.
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V. CONCLUSION Having found that all factors point towards awarding
interim equitable relief, the Court issued the following preliminary injunction:
1. As soon as reasonably possible, all immigration detainees at Bristol County House of Correction and staff who come into contact with them must be tested for COVID19. The Court shall be satisfied with a polymerase chain reaction (PCR) test approved by the Food and Drug Administration for this purpose. The test shall be provided at no cost to the detainees or BCHOC staff; if there are costs, ICE is to bear them. Anyone covered by this order may decline to be tested, but a declination shall be treated as a positive COVID-19 result and that person shall be presumed to be carrying the COVID-19 virus.
2. No new immigration detainees may be admitted to Bristol County House of Correction. Any detainee who was already admitted but has left or will leave the facility, for whatever reason, shall not return.
3. The above orders shall automatically dissolve upon the latter of the following two events: (a) the Judicial Conference of the United States rescinds its authorization under the CARES Act for the use of video [33]

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and teleconferencing during certain proceedings;21 (b) the Supreme Judicial Court rescinds the rebuttable presumption of release for certain inmates it has described in Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 142 N.E.3d 525 (2020). 4. At a hearing held on May 11, 2020, the Court modified the preliminary injunction as follows: No immigration detainee shall be transferred from the Bristol County House of Correction to another detention center until the testing required by the preliminary injunction has been performed and the Court has been informed that the test was negative. If the individual declines the test, then that person may be moved upon proper notice to the Court so long as existing ICE protocols having to do with the health of the individual are followed. The order in this paragraph shall dissolve together with the rest of the preliminary injunction. SO ORDERED.
/s/ William G. Young_ WILLIAM G. YOUNG DISTRICT JUDGE
21 See Judiciary Authorizes Video/Audio Access During COVID19 Pandemic (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizesvideoaudio-access-during-covid-19-pandemic.
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 Case 1:20-cv-10617-WGY Document 185 Filed 05/22/20 Page 1 of 39

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

DEFENDANTS’ MOTION FOR RECONSIDERATION I. OVERVIEW
Respondents-Defendants hereby request that the Court reconsider its decision on Plaintiffs’ Motion for a Preliminary Injunction (docket # 175, hereinafter “Decision”). With due respect for the careful consideration given by the Court, Defendants believe that a second look is warranted.
It is clear from the Decision that the Court is frustrated by what it sees as Defendants’ near-complete refusal to take steps to reduce the risk of an outbreak of COVID-19 within the Bristol County House of Corrections facility (“BCHOC”). In this Motion for Reconsideration, Defendants hope to show the Court that Defendants did, in fact, make very serious efforts to reduce the risk of infection, including by releasing and agreeing to the release of detainees, and that Defendants’ litigation responses do not comprise a complete picture. Put another way, although the parties disagree about the extent of remedial action required, and perhaps the form of such action, Defendants have not been deliberately indifferent as that phrase is defined by the Supreme Court and the First Circuit.

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II. DEFENDANTS’ POSITION REGARDING RELEASE IS NOT EVIDENCE OF DELIBERATE INDIFFERENCE A. The Context of the Releases Is Important The Court finds great fault with what it calls Defendants’ steadfast, obdurate refusal to
initiate the releases of detainees on their own. It is important to recall how this case began to place this issue in proper perspective. The complaint was filed on March 27, 2020. At that time, BCHOC had taken extensive measures to prepare for and to combat the threat of infection. It had instituted the “CPS Clinical Guideline” which adopted the recommendations of the Massachusetts Department of Public Health and the Centers for Disease Control (“CDC”) for preventing infection, monitoring detainees, screening detainees and staff, isolating those who might be positive (staff and detainees) and testing.1 See, e.g., Affidavit of Nicholas Rencricca, ex. 1 to docket # 35 and attachment thereto.
Although the Court has assumed otherwise, there was no evidence that the steps taken by Defendants were inadequate at that time. Indeed, as the Court is well aware, for the first six weeks of this litigation there was not a single confirmed case of COVID-19 within the inmate or detainee population, while the rate of infection in the Commonwealth at large was skyrocketing. Indeed, to date (almost eight weeks into the litigation and three months into the pandemic) there has been only a single positive test among the detainee population, and that result is highly doubtful as the same individual tested negative, along with eighteen of his Unit mates, just two days later. See Declaration of Judy Borges, Assistant Deputy Superintendent of Medical Services, attached hereto as Exhibit 1, and Fourth Declaration of Superintendent Steven Souza,
1 “CPS” is the acronym of Correctional Psychiatric Services, which has a contract with the Bristol County Sheriff’s Office to provide comprehensive medical services to inmates and detainees at BCHOC. See Affidavit of Nicholas Rencricca, ex. 1 to docket # 35, ¶ 1.
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attached hereto as Exhibit 2. Thus, at the outset of the litigation, while there were certainly reasons to be concerned
about the coronavirus and its potential spread in any congregate living situation, there was nothing to indicate that the steps taken by Defendants were inadequate. Especially considering those steps were in accord with all then-available guidance and buttressed by the fact that there were no known cases of COVID-19 among the detainee population or staff at that time.
The litigation was certainly not brought on the basis of “let’s get together and talk about what can be done at Bristol.” Rather, Plaintiffs sought (and still seek) the immediate release of all detainees, regardless of the statute controlling their detention, their age or health, their criminal history or their potential for flight, as well as a complete ban on placing any new detainees at the facility for the indefinite future. The uncontested fact that a detainee had been convicted of rape and was subject to an Interpol Red Notice, abused his spouse and children, or been convicted of trafficking fentanyl made no difference to Plaintiffs—they still wanted the detainee released.
Against this backdrop, at the second hearing on April 2, 2020, without proposing that ICE on its own review all the detainees for release, the Court assembled five subclasses of detainees. Dkt. # 36. The classes were organized by their comorbidities for the coronavirus and the extent of their criminal history. The Court then asked ICE to consider releasing a group of twelve detainees in group one voluntarily. ICE agreed to release six of the twelve and informed the Court that it was releasing two more detainees on bond. Defendants urged the Court not to release the remaining six detainees owing to its perception of their dangerousness. The Court released three of those detainees. Dkt. # 44. One of the released detainees had been convicted in the United Kingdom for rape, robbery, assault causing serious bodily harm, and handling stolen
3

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goods. Defendants immediately sought reconsideration and, mindful of the Court’s goal of reducing detainee population, offered to release a different detainee that ICE did not consider to be a threat to the community. Dkt. # 51. This is precisely the type of cooperative approach to reducing the detainee population that the Court denies Defendants possessed.2 This offer was accepted by the Court, although a similar offer subsequently made was not. Dkt. # 63.
Without explanation, the Court dropped the subclass categories at the next hearing on the following day, April 3, 2020, and proposed instead that the parties prepare a joint list of the 50 highest priority detainees to be considered for release. Dkt. # 43. The Court indicated that if the parties could not agree on a joint list, the Court would come up with its own list. It did not explain what criteria would be used. After the Court selected 50 detainees, the process of daily lists of ten detainees with input from each side went forward.3 See, e.g., dkt. # 46.
At the outset, the Court made it clear that it was going to release a number of detainees in order to make social distancing more feasible within BCHOC. See, e.g., Transcript, 4/3/20, passim. The roles and procedure were set by the Court: it would select a daily list of ten detainees and the parties would provide input regarding their merits for release.4 See id. at pp.
2 The Court released two individuals, including one with recent charges of Risk of Injury to a Child (Urbina-Rivas) and another who had repeatedly failed to comply with the conditions of his prior ICE release who was a risk of flight (DeOliveira). Defendants’ objections to the release of these two were well-founded.
3 Plaintiffs indicated immediately that they would not propose a list, as they felt it would mean putting the interests of some clients over the interests of other clients. Faced with this, and with the Court indicating that if the parties could not agree on a list, the Court would come up with its own list, ICE also declined the Court’s offer since the Court had not indicated it would use one side’s list if there was only one list submitted. “So if you give me two lists or give me an overlapping list, you're not going to know until Sunday at 4:00 what the Court's list is.” Transcript, 4/3/20, at p. 22.
4 The Court did not explain what criteria it was using to select its lists of detainees and 4

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21-23; see also dkt. 46. Having set the procedure and put it in motion, the Court now faults Defendants for not having agreed to release detainees, all lawfully detained, of its own accord or in response to the daily lists. “Yet the record tends to show that the government never formulated a plan to determine a safe population level or how to reach that mark.” Memorandum of Decision, docket # 175 (hereinafter “Decision”) at p. 26. This is like the Court getting in the driver’s seat, picking the destination and blaming the passengers for not driving the car.5 The Court dictated the process, including the solicitation of input regarding the suitability of release, and the Defendants provided it.
The Court chides Defendants for rejecting the notion that population reduction was necessary. In this, the Court perhaps overstates the case. First, Defendants did not categorically rule out a reduction in detainees. As the Court has recognized, Defendants reduced the detainee population by 21 through various means and acquiesced to the further reduction by 28.6 Importantly, the number of detainees released by ICE directly (transfers and release on Orders of Supervision) along with the releases on bond by Immigration Judges have resulted in the reduction of the detainee population at BCHOC by 36, which is a reduction of almost 25%
the criteria were not apparent to Defendants. 5 In fact, Defendants did try to assist the Court with input on the most dangerous or flight-
likely detainees. Further, the Court concedes that it “forced individual bail applications upon the government,” Decision at 18, but implies that this came only after Defendants had an opportunity to reduce the detainee population of their own. The process was put in place by the Court in the first week of litigation, with no invitation by the Court for Defendants to suggest an alternative means of achieving detainee safety. Nor at any point did the Court, nor Plaintiffs, signal what an appropriate level of reduction would be.
6 The fact that five detainees were added is a consequence of criminal inmates being released to an ICE detainer and not of new arrests in the public domain. As such, this was not deliberate on Defendants’ part.
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without accounting for what the Court was doing at the same time.7 Second, the Court selectively quotes Defendants’ filings regarding the daily detainee
lists. “Day in and day out, the Court was told that “[i]t is ICE’s position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC.” Id., at 18. This statement was made to protect Defendants’ rights, hence the phrase, “for the record.” Moreover, it is a statement of Defendants’ view of whether a reduction was necessary and was not a statement of opposition to any release, which the Court had made clear was going to happen. Thus, Defendants then went on to state: “Recognizing that the Court will order the release of some detainees, Defendants suggest that of the first group of ten, the following individuals cannot be safely released into the community” and listed four individuals. Thus, out of the first list of ten, Defendants signaled their acquiescence to the release of six and released a seventh individual (Harlan Perez). This hardly constitutes “[a] wholesale blockade on bail.” Decision at 27.
In response, the Court released eight detainees, including three out of the four that Defendants urged the Court not to release. The released detainees included persons with multiple firearms convictions (Morales), convictions for trafficking in crack cocaine (Smith), and extensive history of violent crime, including assault and battery with a dangerous weapon and assaults/threats against women (Thomas).8
7 The Court cites an aspirational goal of ICE nationally to reduce the detainee population to 75%, but this is of capacity, not as a percentage of the detainee population where capacity was not full (which it was not at BCHOC). See Decision at 25. Even as a percentage of detainee population, that was met long ago. The present detainee population is 73, one detainee less than half the original population when the suit was filed, and represents no more than 30% of capacity.
8 Defendants inadvertently mixed up the criminal history of two detainees. The Court 6

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On that same date, April 7, 2020, the Court invited the parties to address “whether given the number of cells and the common areas in the detention facility there is some number of detainees who might occupy the facility and yet be adequately spaced? Much like a nursing home or retirement facility. The views of physicians and public health professionals will be gratefully received. We shall discuss this matter at the hearing ordered for Thursday, April 9, 2020 at 2:00 PM.” Dkt. # 55. Clearly, the Court signaled three things: first, by releasing three of the four detainees as to whom Defendants had strongly objected, the Court was not inclined to agree with Defendants regarding the danger to the community or risk of flight of particular detainees. Second, the Court opened the door for a discussion of whether there was some number of detainees which would be safe with respect to social distancing. In this regard, although it was an inquiry and not a determination, the Court for the first time recognized that release of every single detainee (as advocated by Plaintiffs) might not be necessary.9
For the second list of ten, Defendants again protected the record by stating their continued belief that detainee safety did not require the release of any detainees but specified that
denied bail to the detainee that Defendants represented had an extensive criminal record including assault and battery with a dangerous weapon and drug trafficking convictions. When Defendants attempted to correct their mistake, the Court refused to reconsider the release of the detainee whose record demonstrated a significant risk to the community (Schnaider). See dkt. # 63.
9 It was in this context that Defendants suggested that BCHOC is not like the outside world in terms of access. The Court finds this position ludicrous, but it is a fact that human entry into BCHOC has been much more limited than interaction is on the outside. Moreover, BCHOC instituted screening procedures which further differentiated it from society at large. These facts, along with numerous other precautions taken by Defendants, are reflected in the far lower rate of infection in the BCHOC “community” than in the Commonwealth as a whole. To this day, nearly two months after dire predictions of a facility outbreak, there has been only one positive detainee and that result was almost surely a false positive. See Declaration of Judy Borges, attached hereto as Exhibit 1.
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of the ten, there were six who should not be released. Defendants candidly expressed their concern regarding the criminal history and flight risk of a number of the people released by the Court, pointing out that most of the people on the list would fall into category four of the five subclasses initially set out by the Court and as to which the Court appropriately expressed its unlikeliness to release any of the detainees who fell into that group. The Court chose not to engage in a dialogue with Defendants on the issue however.10 In response to Defendants’ input regarding the April 8, 2020 list, the Court released all six of the individuals that Defendants had suggested should not be released. Again, the Court signaled, quite unmistakably, that it was not going to agree with Defendants and released individuals who posed a risk of flight due to passport fraud and illegal reentry (Peguero-Vazquez), or a danger to the community due to domestic violence, aggravated assault with a weapon, extortion and drug trafficking (Vargas), pending charges of assault with a dangerous weapon (knife) and assault and battery with a dangerous weapon and domestic violence (Jaramillo-Quiroz), and trafficking in fentanyl (Mota). Two others presented risks of flight due to a lack of ties to the area and use of false identities and documents (Hussein and Ferreira).11
On April 9, 2020, Defendants proposed to the Court an additional condition of release, that ICE be allowed to place released detainees on electronic monitoring. Again, this is an
10 In addition, reflecting their ongoing efforts to improve conditions at BCHOC, on April 8, 2020, Defendants informed the Court that they had reconfigured the sleeping arrangements to increase the space between detainees.
11 The Court has expressed its view that ICE has detained persons the Court does not think require detention, see, e.g., dkt. # 175 at n. 4. But all detainees are and were subject to detention in accordance with relevant statutory authority and the records of the released detainees are replete with violent crimes, drug trafficking and domestic abuse, so there is a difference of opinion on that. The Court did not, however, address the risk of flight, even though that is one of the two statutory bases for detention.
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affirmative step taken by Defendants attempting to balance the Court’s objective of reducing the detainee population and yet protecting the community and ensuring that released aliens would not flee. Of the April 9th list of ten, Defendants recommended that six could not be released safely and one, a woman, need not be released because there was no issue with social distancing for the female detainees. This was in response to very significant criminal histories. In contrast to the Court’s take on the individuals coming up for consideration, Defendants were surprised that most of the people being considered for release would have fallen into categories four or five of the Court’s original structure. For example, one was recently charged with enticing a child under the age of sixteen and assault and battery (Arreaga). Another had recently been charged with striking his girlfriend in the head with a glass bottle so forcefully that he caused her to lose consciousness (Beltran-Araujo). He was also charged with risk of injury to a child. Another on the list amassed 30 arraignments in Massachusetts since 2007, including convictions for assault and battery on a child, assault and battery, possession of a firearm with defaced number, firearm identification card, and disorderly conduct (Portillo). The last detainee objected to had convictions for two counts of trafficking in cocaine, for which he received a 10-year sentence (Corleto). In short, these are not incidental, benign records and Defendants’ objections were not frivolous nor raised to be obstructive.12 The Court nonetheless admitted three of these detainees to bail, including Beltran-Araujo and Corleto. Dkt. # 73.
The process continued in this manner. Defendants acquiesced to additional releases until April 21, by which time the Court had rejected the Defendants’ motion to stay without
12 Moreover, Defendants respectfully disagree with the Court’s view that the people as to whom Defendants objected to release would likely be released on bail in a criminal case were they United States citizens and also notes this view to be the quintessential comparison of apples and oranges.
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considering the argument that a sufficient reduction had been achieved. Here are the numbers:

Date

Number of Detainees Defendants Acquiesced to Release

4/7

6

4/8

4

4/9

3

4/10

6

4/13

0 (4 scheduled for removal)

4/14

1 (plus 1 released on bond)

4/15

3

4/16

4

4/17

0

4/20

1

4/21

0

4/23

0

4/27

0

Total

28

Thus, Defendants agreed to the release of more than one-half of the detainees released by

the Court. When this number (28 detainees acquiesced to) is added to the 6 released on orders of

supervision and the 15 transferred out of Bristol for removal, the actual total number of detainees

that Defendants agreed to the release of, or directly caused the release of, is 49.13 That is 111%

of the total number of releases made by the Court (44). Clearly, Defendants were engaged in

good faith in the release process.

13 This number does not give Defendants any credit for the 15 detainees releases by Immigration Judges, when in fact ICE could have sought a review of the decision to release with the Board of Immigration Appeals but chose not to. When the Court refused to engage on the question it had posed (i.e., what is a sufficient reduction in detainee population), and which lay at the heart of the Court’s approach, it was the Court, not Defendants that was “not playing ball.” By April 21, 2020, Defendants believed a sufficient reduction in detainee population had been achieved and thereafter Defendants did not agree to further releases until the Court addressed the target reduction question.
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B. The Issue of How Much Reduction Is Enough Was Never Decided
On April 7, 2020, the Court entered the following order:
Judge William G. Young: ELECTRONIC ORDER entered. In accordance with the Order entered on April 5, 2020, docket entry 46 the following detainees shall be submitted to bail and released forthwith: Montes-Santos, Pascual; Figueroa-Moralis, Julio; Smith, Donovan; James, Andrea; Thomas, Joko; Thomas, Akeim; Sanchez-Lopez, Victor; Paul, Schnaider. Notice has been made that Harlen, Perez has previously been released and therefore is dismissed from the class. The Court inquires whether given the number of cells and the common areas in the detention facility there is some number of detainees who might occupy the facility and yet be adequately spaced? Much like a nursing home or retirement facility. The views of physicians and public health professionals will be gratefully received. We shall discuss this matter at the hearing ordered for Thursday, April 9, 2020 at 2:00 PM. Said hearing shall be held remotely by video/telephone. (Hearing set for 4/9/2020 02:00 PM remotely before Judge William G. Young by video/telephone.)(Gaudet, Jennifer) (Entered: 04/07/2020)
Docket # 55 (emphasis supplied). In response to the Court’s inquiry regarding whether there was
a level of population reduction which would render the conditions relatively safe for the
remaining detainees, Defendants submitted two declarations on Thursday, April 9, 2020. One
was from Superintendent Steven Souza of BCHOC. That declaration went through the areas
where detainees are held at BCHOC in painstaking detail, providing both dimensions and the
current number of detainees housed in each. The second declaration was from Nelly Floriano,
the Nursing Supervisor for ICE detainees at BCHOC, who reviewed the prevention and
treatment practices at the facility and offered an opinion regarding the ability of ICE detainees to
maintain social distance.
Defendants followed up the declarations with a brief on Tuesday, April 14, 2020. The
brief addressed the current detainee population at BCHOC within each unit where immigration
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detainees are held. Attached to the brief was an updated declaration of Superintendent Souza.14 Together, these submissions made the case that the reduction in population to date, coupled with steps taken by BCHOC to reconfigure sleeping arrangements, meal taking, and other activities made social distancing much more feasible and compliant with all CDC recommendations (given the inherent limitations of a detention facility, which even the CDC recognizes).
Defendants did not undertake to brief the issue of whether social distancing is feasible at BCHOC lightly or as some folly of their own invention. The Court made it clear, both in the April 7th order quoted above and in repeated comments during various hearings, that the rationale of reducing the detainee population was because social distancing is one of the essential defenses to the spread of the COVID-19 virus. Because social distancing was possible, for the most part, and the Court had expressed its particular interest in social distancing, Defendants reasonably asked that the Court not release any additional detainees at that time. The detainee population at BCHOC had been diminished by thirty-eight percent (38%) from the level at the outset of the litigation at that time.15
In response, the Court stated the following in its denial of the motion to stay: We are in the midst of a pandemic unprecedented in our lifetime.
14 A third exhibit had diagrams showing how the bunk beds in the two main units, ICE A and ICE B, were occupied and how detainees might be reassigned to increase the distance among them. This is another example of Defendants attempting to find solutions to the problem defined by the Court. The government also submitted two videos which showed the detainee facilities at BCHOC. At the hearing on April 9, 2020, it was clear that the Court had not had sufficient time to review the videos, but it is unclear if it has done so since. Part of the challenge of this case has been the relentless pace. There are over 180 docket entries in just over seven weeks. Plaintiffs are represented by 17 attorneys with the assistance of at least 8 law students; Defendants are represented by two attorneys from the U.S. Attorney’s Office, one of whom cannot work on this case full-time.
15 The current population has been reduced by more than half of what it originally was (from 148 to 73).
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Past experience is an uncertain guide to meeting the challenges of today. Thus, while the Court notes the revised ICE regulations concerning detainees, it is simply not presently in a position to issue any blanket stay which would, as a practical matter, go far to determining the merits of this case, ignoring the many other issues raised by the class. Instead, the Court will continue, on an individual basis, to work through the difficult issues of bail in the present crisis. That done, probably by the end of next week, we shall together schedule proceedings promptly to address the merits. Moreover, compelling issues of individual, institutional, and community health preclude the luxury of a stay so counsel can ‘consider their appellate options.’ The motion is denied.
Dkt. # 86.
The Court’s statement was, frankly, perplexing. Defendants did not ask for a “blanket
stay” but asked that the Court not release any additional detainees because the criteria which the
Court itself set forth, that detainees be able to maintain six feet of separation, had been met (at
least from Defendants’ perspective). The Court did not address the evidence presented by
Defendants whatsoever. Indeed, by its opaque reference to the revised ICE Guidelines and “past
experience is an uncertain guide,” it does not appear that the Court even considered the central
tenet of Defendants’ brief—that sufficient reduction had occurred to allow social distancing. Again, this is precisely the question as to which the Court solicited the parties’ input.16 At the
core of the Motion to Stay was the issue, which the Court itself teed up but then refused to
address, of whether there was a safe level of detainee population. While this is a difficult issue
to resolve, the Court put itself in this position by making social distancing the key factor in
addressing the concerns presented by Plaintiffs. The Court has not, to this day, decided that
16 Nothing in the submission by Defendants asked the Court to take guidance from past actions. The revised ICE guidelines were not even mentioned in Defendants’ brief. Defendants did reference the revised CDC guidance, but not in the context of change so much as to demonstrate that BCHOC has been meeting the CDC guidance since before this case was filed.
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issue.17
C. The Court Decided the Preliminary Injunction Motion on Other Grounds
At the preliminary injunction hearing, the Court effectively dropped its effort to
determine what is a safe level of detainees at BCHOC. Nor did the Court address a comparison
of the conditions of released detainees to those still detained, despite repeated requests from
Defendants. Throughout the litigation, the Court has apparently accepted Plaintiffs’
exaggerations of how bad conditions are within BCHOC and how safe conditions outside of BCHOC are.18
Defense counsel had suggested, during the last hearing prior to the preliminary injunction
hearing, that the Court consider appointing a special investigator or master to tour BCHOC and
investigate the actual conditions. This was a creative and cooperative attempt by Defendants to
move the dispute forward and provide the Court with an independent assessment of the actual
17 The CDC guidance for correctional facilities recognizes that social distancing is not easy in the correctional setting: “Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (accessed 5/15/20). It is important to keep in mind, moreover, that social distancing does not mean, as Plaintiffs would have it, that two persons cannot ever be within six feet of each other even for a moment. As the CDC guidance on contact tracing cited by the Court states: “Based on our current knowledge, a close contact is someone who was within 6 feet of an infected person for at least 15 minutes starting from 48 hours before illness onset until the time the patient is isolated.” CONTACT TRACING, Part of a Multipronged Approach to Fight the COVID-19 Pandemic available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/principles-contacttracing-booklet.pdf (last accessed May 15, 2020)(emphasis supplied).
18 At the preliminary injunction hearing on May 7, 2020, the Court did express doubts as to whether it could address the conditions at BCHOC in a habeas petition, but it has not inquired as to the relative safety of detention versus release and assumed that release is safer for both the released detainees and those left behind.
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facts on the ground. Although the Court expressed interest in the idea, it did not take it up. After determining that Plaintiffs must show that Defendants were deliberately indifferent to their medical needs on their Fifth Amendment claim, the Court focused primarily on Plaintiffs’ likelihood of success on the merits. According to the Court, Plaintiffs were likely to succeed because Defendants:
1. Did not release a sufficient number of detainees on their own initiative; 2. Did not conduct wide scale testing of asymptomatic personnel and detainees; and 3. Did not conduct contact tracing for persons who tested positive. With all due respect, Defendants believe the Court got this wrong. 1. Release of Detainees: As indicated, Defendants were not as reluctant to release detainees as the Court has said. The difference between the “for the record” statement, which was consistent with Defendants’ position, and their recommendation of a subset of detainees who should not be released can only mean one thing: Defendants were open to a release of the other detainees on the daily lists but wanted to reserve their rights.19 As the Court indicated, Defendants are directly responsible for a reduction of the detainee population by 21 detainees.20 That is almost half of the number (44) released by the
19 Since the Court was releasing detainees based on its “inherent authority,” and not based on a class-wide determination on the merits, and not explaining its reasoning as to any release, it is understandable that Defendants felt compelled to preserve their position that release was not necessary.
20 As stated by the Court, 6 detainees were released by ICE on order of supervision and another 15 were transferred out of BCHOC as part of their removal. Because, as stated above, ICE has no control over when a criminal inmate will be released to ICE, the addition of five detainees has no bearing on ICE’s willingness to release detainees. It cannot be considered evidence of indifference.
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Court. Moreover, if one adds the number of detainees as to whom Defendants indicated their acquiescence for release (28), the total number is 49 (21 plus 28). Thus, while the Court has characterized Defendants as setting up a “wholesale blockade on bail,” Decision at 27, this is not a fair or accurate characterization. Even before taking into account the detainees as to whom Defendants acquiesced to their release, Defendants are responsible for 26% of the total reduction, while the Court is responsible for 55%. And of that 55%, Defendants essentially agreed to 28, i.e., more than half the detainees released by the Court were persons as to whom Defendants indicated release would be acceptable. Put another way, Defendants agreed to a 33% reduction in the total detainee population even without considering their decision not to seek stays of or appeal any Immigration Judge bond decisions.
But more important than the numbers is the paradigm. The Court finds evidence of deliberate indifference in Defendants’ unwillingness to reduce the detainee population not so much as an existing practice prior to the litigation’s inception, but after the complaint was filed. This might be evidence of indifference if the Court had said, “we have a problem, what can we do about it?” and Defendants refused to do anything. Such is not the case, as BCHOC was taking action. But the reality is that the Court said it was going to reduce the detainee population through bond determinations, so that was (as Defendants acknowledged in writing, see, e.g., dkt. #50: “[r]ecognizing that the Court will order the release of some detainees”) a foregone conclusion. The fact that Defendants articulated the lawful basis for the detainees to remain in ICE custody and disagreed with many, but not all, of the Court’s decisions on who should be released is not evidence of deliberate indifference because the Court was releasing detainees – and, as said, fully half of those releases were with Defendants’ tacit approval.
Crucially, neither the Court nor Plaintiffs ever suggested, much less established, what a
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safe number of detainees would be. Since Defendants had taken extensive steps to prevent COVID-19 from entering the facility and containing an outbreak if it arose, and has done so quite successfully, it is hardly a clear sign of their deliberate indifference that they did not proffer an alternative method of reducing the population to an [unknown] safe number. Decision at 27.21 Moreover, 55 of the original 148 detainees were subject to mandatory detention (31 pursuant to 8 U.S.C. § 1226(c) due to their criminal convictions and 24 pursuant to 8 U.S.C. § 1231), and Defendants indicated this to the Court. As stated by the Supreme Court in Jennings regarding § 1226(c):
The Attorney General may release aliens in those categories “only if the Attorney General decides ... that release of the alien from custody is necessary” for witness-protection purposes and “the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” § 1226(c)(2). Any release under those narrow conditions “shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” Jennings v. Rodriguez, 138 S. Ct. 830, 837-838, 200 L. Ed. 2d 122 (2018). Defendants agreed to the release of, directly released or transferred 59 detainees; out of the remaining 89, 55 were subject to mandatory detention. Thus, only 34 detainees were truly “in play,” and there was no deliberate indifference.
21 The Court’s frustration with Defendants appears to stem in part from its disagreement with American correctional practices, which the Court believes are over-inclusive, and from what Defendants believe is a somewhat inaccurate characterization of Defendants’ willingness to take protective measures against the virus. Again, such differences do not establish that Defendants were deliberately indifferent to the threat of COVID-19. Dr. Rencricca’s affidavit alone makes it clear they were not, as do the other declarations submitted by Defendants. See, e.g., dkt. # 35.
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2. Wide Scale Testing of Asymptomatic Individuals Was Not the Standard The second leg of the Court’s deliberate indifference finding is that Defendants failed to conduct wide scale testing of detainees and staff who were asymptomatic. This was not, however, the standard of care when the lawsuit was filed and it is not the standard now. While many experts urged more testing, citing the success of South Korea, for example, there was no consensus that the ideal of widespread testing could be accomplished.22 There simply were not enough reliable test kits available. No congregate living facility, to counsel’s knowledge, was testing all residents without regard to whether they were symptomatic or not. “The record indicates that BCHOC tested no Detainees before April, five in April, and at least twenty on May 1…” Decision at 29. But no one was recommending widespread testing for asymptomatic persons before the end of April. In fact, FDA is apparently still not recommending widespread use of reverse transcription polymerase chain reaction (RT-PCR) testing in asymptomatic populations:
At this time, most EUA-authorized SARS-CoV-2 molecular diagnostics are authorized for use in individuals suspected of COVID-19 by their healthcare providers. Testing of asymptomatic individuals who are suspected of COVID-19 is at the discretion of the healthcare provider ordering the test. FAQs on Testing for SARS-CoV-2, available at https://www.fda.gov/medicaldevices/emergency-situations-medical-devices/faqs-testing-sars-cov-2 (last accessed 5/8/20). Similarly, the CDC says on its website: Who should be tested
22 See, e.g., Quammen, David. “The Warnings,” published in The New Yorker, May 8, 2020, in which epidemiologist Ali S. Khan noted that the United States had a “failure of imagination” regarding the risk of an epidemic and that the failure to test was widespread in this country, despite the example of South Korea’s success with testing.
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To learn if you have a current infection, viral tests are used. But not everyone needs this test. Most people will have mild illness and can recover at home without medical care and may not need to be tested. CDC has guidance for who should be tested, but decisions about testing are made by state and local health departments or healthcare providers. CDC website, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (accessed 5/18/20). CDC does suggest prioritization of testing in long-term care facilities (not prisons), which have been hit hard by the coronavirus: Another population in which to prioritize testing of minimally symptomatic and even asymptomatic persons are long-term care facility residents, especially in facilities where one or more other residents have been diagnosed with symptomatic or asymptomatic COVID-19. CDC: Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19), available at https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html, last accessed 5/18/20. In a March 15, 2020 letter from FDA to Robert R. Redfield, MD, Director of the Centers for Disease Control and Prevention, at p. 2, the FDA said: “Accordingly, testing is now intended for the qualitative detection of nucleic acid from the SARS-CoV-2 in upper and lower respiratory specimens collected from individuals who meet COVID-19 clinical and/or epidemiological criteria (for example, clinical signs and symptoms associated with COVID-19, contact with a probable or confirmed COVID-19 case, history of travel to a geographic locations where COVID-19 cases were detected, or other epidemiologic links for which COVID-19 testing may
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be indicated as part of a public health investigation).” https://www.fda.gov/media/134919/
download (last accessed 5/8/20).23
Mass. DPH is also not recommending widespread testing. See DPH website on COVID-
19:
Should I be tested?
If you develop symptoms of COVID-19, call your healthcare provider and tell them about your symptoms. They will help you decide whether testing is appropriate. For detailed information, visit the CDC’s webpage: Testing for COVID-19.
https://www.mass.gov/info-details/covid-19-testing#should-i-be-tested?- (last accessed
5/17/20).24
23 Moreover, in “Policy for Coronavirus Disease-2019 Tests During the Public Health Emergency (Revised),” FDA stated that “Nothing in this guidance is intended to impact or supersede CDC’s recommendations regarding which patients should be tested for COVID-19.” Id., at n. 6 (available at https://www.fda.gov/media/135659/download, last accessed 5/8/20).
24 The Court references “sentinel testing,” citing White House, CDC & FDA, Testing Blueprint 3 & n.1 (Apr. 27, 2020), https://www.whitehouse.gov/wpcontent/uploads/2020/04/Testing-Blueprint.pdf. Dkt. 175 at n. 9. This White House guidance says: “Sentinel monitoring involves targeted, voluntary testing of asymptomatic individuals at “sentinel sites,” which are selected locations that are likely to see cases of the disease.” “State plans should also prioritize the testing needs of vulnerable and otherwise high-risk populations, including the elderly and healthcare workers…” Id. at p.4. “ This can be accomplished through sentinel monitoring systems at critical locations, including senior and other congregate living settings and Federal and federally supported health clinics,” id. p.6. Nothing in the guidance specifically targets correctional facilities. But much more importantly, this was only issued on April 27, 2020 (see, e.g., https://www.usatoday.com/story/news/politics/2020/04/27/whitehouse-unveils-coronavirus-blueprint-expand-state-testing/3032782001), and cannot show deliberate indifference by Defendants as to events that occurred prior to that date because (i) there was no accepted policy that widespread testing should be done before that date; and (ii) the White House guidance does not establish such a policy even now. At most, it recommends more testing, but that was not the recommendation of the White House, or CDC, prior to April 27, 2020. The same point holds for the article cited by the Court in footnote 8 of the Decision, dkt. #
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The upshot of all of this is that there was, and is, no clear policy that widespread testing
of asymptomatic individuals is required. Certainly there were experts who recommended
widespread testing, not just in congregate living situations, but in the community as a whole.
But this was always tempered by the relative unavailability of reliable testing kits and never
became the standard such that the failure to conduct asymptomatic testing at Bristol is evidence
of deliberate indifference.
Nor did the Court express a view, prior to the preliminary injunction hearing, that
widespread testing should occur.25 The Court asked for reports on who was being tested among
detainees and what the results were, and even that request came relatively late in the course of
this case. The Court is correct in its view that the pandemic is an enormous challenge and a fluid
175. It was published on April 24, 2020 and while it may be informative generally, it cannot be taken as establishing a minimal standard of medical care regarding COVID-19 in correctional facilities because it is focused solely on nursing homes. Moreover, it was published late in this litigation, so even if an article regarding testing at nursing homes could somehow establish a standard of care for correctional facilities, and the Defendants could be assumed to be current in their medical journal reading, it was not published until April 24, 2020.
25 In the most recent inquiry prior to the preliminary injunction hearing, the Court said “The Court will propound at least the following two questions at Thursdays hearing: To plaintiffs’ counsel: Since it appears uncontroverted that certain detainees refused to be tested, isn’t the Court entitled to assume they feared a positive test with the consequence of quarantine and collateral restrictions? To defense counsel: How many detainees remain in custody at the site (whether original class members or add ons) Exactly where are they and under what conditions are they being held? The numbers in each particular location within (or outside) the site. What opportunity, if any, do they have to intermingle and with whom? Dkt. #144. This indicated that the Court’s focus remained on social distancing. And, although the Court asked for results of testing in a previous docket entry, that was not related to widespread testing of asymptomatic individuals. See Dkt. #132: “ The Court addresses counsel regarding outstanding detainees. The government shall submit a list of detainees that have been removed and to which country they have been deported to. A hearing on the motion for preliminary injunction is set for Thursday, May 7, 2020 at 10:00 AM by video. The Court takes the matter of appointing a special master under advisement. A report as to the results of COVID-19 testing shall be supplied.
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one, with practices and guidance changing over the course of the last six weeks. For example,
when the lawsuit was filed at the end of March, facial masks were not recommended for
asymptomatic individuals while in public. Now they are required in many jurisdictions and
recommended by national authorities. Accordingly, as soon as this recommendation was issued,
BCHOC distributed masks to all staff and detainees. This is, again, a sign not of rigid
indifference but of earnest attempts to protect people and keep up with the changing guidance.
This is not to say that widespread testing of asymptomatic individuals is a bad idea necessarily.26 It is not to say that Defendants would never have agreed to some plan for increased testing.27 But it is very much to say that the Court is wrong that the minimum standard
of care throughout this litigation (or even now) requires such testing. Having never suggested,
much less demanded, widespread testing of asymptomatic individuals, and given that none of the
available guidance indicates that such testing is required, what the Court has done is make its view of “best practices” the minimum standard of care.28 And because Defendants did not meet
26 In a case involving similar claims by a purported class of pre-trial detainees at Plymouth County Correctional Facility, Judge Sorokin said “The petitioners in this case have not suggested the Constitution requires institution-wide testing, nor have they asked for it. The Court highlights DOC’s approach to testing because it appears eminently sensible, and it shows that DOC’s response to this virus—like PCCF’s, in many ways—is something that necessarily is constantly evolving as more information and more resources become available.” Baez v. Moniz, 20-10753-LTS (D.Mass. May 18, 2020, docket # 65).
27 “The government has resisted widespread testing and has continued to accept new detainees. Accordingly, the Court found that the Detainees showed a likelihood of irreparable harm.” Decision at 20. But neither the Court nor any public entity urged Defendants to conduct widespread testing, so there is no evidentiary basis for the claimed resistance. And any new detainees have come from the criminal side of BCHOC and been medically screened prior to transfer, so it cannot be said that this is evidence of indifference either.
28 Defendants do not believe that the Court’s views were informed by expert testimony on this subject, although there have been so many filings in this case that a passing reference to it could have escaped counsel.
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what the Court has deemed the minimum standard of care, they must be deliberately indifferent. Defendants disagree that widespread testing is the minimum standard of care, and find it particularly problematic that the Court reached its conclusion without providing the parties an opportunity to brief and argue the issue. Nothing in the Court’s comments prior to the preliminary injunction hearing foreshadowed this as an issue, much less one of three central issues.
Moreover, testing of individuals provides at best a snapshot in time. If every detainee and staff member could all be tested on May 15, 2020, within two or three days we would know who was infected (within the accuracy limits of the testing). But this would not tell us who was infected on May 18, 2020, necessarily, because all of those individuals would have had additional contacts in the interim. Particularly with the staff, who go home everyday, there are additional opportunities for exposure. So from this hypothetical, we can see that widespread testing has benefits in that we might learn of infected individuals who were asymptomatic, and who we would not otherwise have known about, and take steps could be taken to isolate them. That would be helpful. But it is not a panacea. Unless it is done regularly, the information becomes outdated fairly quickly. Additionally, routine testing of asymptomatic individuals is not clearly practical on a widespread basis. Like many things concerning this pandemic, there is a balancing that must be accomplished. At bottom, regardless of the pros and cons of widespread testing, the one clear fact is that it was not and is not the standard of care.
3. The Court’s Position on Contact Tracing Is Similarly Flawed Just as with wide scale testing of asymptomatic individuals, the Court essentially sprung its theory of contact tracing as part of the minimum standard of care on the parties when issuing its decision at the preliminary injunction hearing.
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“Without robust testing and contact tracing, the spread of the virus cannot be known or contained. Keeping individuals confined closely together in the presence of a potentially lethal virus, while neither knowing who is carrying it nor taking effective measures to find out, likely displays deliberate indifference to a substantial risk of serious harm.” Decision at 29. There are several assumptions made in these statements. First, at no point have Defendants knowingly kept individuals confined in close proximity in the presence of the virus. As established at the outset of the litigation, BCHOC has extensive procedures to isolate symptomatic individuals. The Court might well respond, “but what of the fact that individuals can be infected and remain asymptomatic?” That is precisely the debate that has been going on in the United States over the last two months, and as stated above, there was no consensus that widespread testing of asymptomatic individuals was required. When there is no medical consensus, the failure to test everyone cannot be deliberate indifference.
With regard to contact tracing, BCHOC was doing the same form of contact tracing done by most other Sheriffs’ Offices, looking at who positive individuals had come into contact with through staff schedules, video records and interviews. The Court never asked for evidence of the contact tracing, however, so its reference to the “silence” of the record is misplaced.29
Nor was contact tracing the standard of care for correctional facilities at the outbreak of the litigation. The Court cites CDC guidance on contact tracing that came out on April 29, 2020 and was directed to health departments, not correctional facilities.30 Once again, the Court has
29 For example, in docket #132, the Court stated as regards testing: “A report as to the results of COVID-19 testing shall be supplied.” This was not interpreted to mean contact tracing since the Court had not mentioned it.
30 Decision at n. 11, citing CDC, Contract Tracing: Part of a Multipronged Approach to Fight the COVID-19 Pandemic (“CDC Contact Tracing”) 1 (Apr. 29, 2020),
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determined what it considers to be best practices and imposed that standard on Defendants to find deliberate indifference.
III. THE LAW DOES NOT PERMIT A FINDING OF DELIBERATE INDIFFERENCE ON THESE FACTS
As stated, the Court based its deliberate indifference finding on Defendants purported unwillingness to release detainees, to conduct widespread testing and to do contact tracing. Decision, passim. The Court appears to say that it may consider Defendants’ conduct after the complaint and petition were filed, while at the same time rejecting the notion that the collective process by which Defendants and the Court released some 65 detainees cannot be considered for purposes of determining Defendant’s deliberate indifference. Decision at 23-24. “Were it not for the Court’s bail orders and preliminary relief -- all of which expire upon a ruling on the merits, and thus cannot decide the merits -- the Detainees would be packed together in close quarters where social distancing is impossible. See Savino I, 2020 WL 1703844, at *2 (describing close living quarters before bail releases).” Decision at 22. However, as stated above, Defendants participated in the bail review process, and differentiated between Defendants’ view that a reduction was not necessary (for the record) and Defendants’ position regarding specific detainees – which was more nuanced. Moreover, Defendants were directly responsible for almost half as many reductions as the Court and also participated in the reduction of new admissions to the facility by seeking not to add detainees other than those currently incarcerated in the Bristol criminal population. All of this stands upon the uncertain foundation that the Court never determined what a safe level of detainees at BCHOC actually is. Instead,
https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/principles-contact-tracingbooklet.pdf
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the Court assumed that whatever the number of detainees at the facility, it was too many even as that number went down by more than one-third of the original population. While this general view finds support in commentary about the risks of congregate facilities in the abstract, it provides no guidance as to what a safe level is and how that is determined. How then can the Court know that its release of 44 detainees, as opposed to the release or transfer of 21 by Defendants (and acquiescence in the release of another 28) and another 15 by Immigration Judges, is what tipped the scales? It cannot, and that means that the Court cannot say that Defendants deliberately and indifferently looked at a known risk (i.e., if detainees are not reduced by X percentage there will be a much higher risk of infection) and ignored that risk.
It is clear that there were opportunities for a more cooperative approach to reduce the risk that were missed. For instance, in similar litigation in the District of New Hampshire, Plaintiffs are setting forth individuals with high risk medical conditions or advanced age as candidates for immediate bail hearings. See Gomes v. Wolf, 20-cv-00453-LM (D. NH 2020). But the fact that Defendants did not (nor did Plaintiffs, of course) set forth a list of detainees for immediate bail hearings is not evidence of indifference. At most, it is evidence that neither side was prepared to go along with the way the Court, ad hoc and without input from the parties, chose to approach the situation. That being said, the threshold to measure deliberate indifference is exceedingly high. As articulated by the First Circuit:
The criteria for identifying whether government action offends the guarantee of substantive due process hinge on the nature of the challenged government action. When challenging executive action under the imprimatur of substantive due process, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. This mantra reflects a realization that challenges to executive action must be viewed through the prism of a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we
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have called a font of tort law.
Consistent with this need to refrain from constitutionalizing ordinary misfeasance or malfeasance, the “shock the conscience” standard erects a high hurdle for would-be claimants. As a result, liability for negligently inflicted harm is categorically beneath the threshold of [substantive] due process. Indeed, the requisite arbitrariness and caprice must be stunning, evidencing more than humdrum legal error. That strain of exaggerated arbitrariness historically has involved deliberate decisions of government officials to deprive a person of life, liberty, or property. Thus, executive branch action that sinks to the depths of shocking the contemporary conscience is much more likely to find its roots in conduct intended to injure in some way unjustifiable by any government interest.’
Aguilar v. U.S. Immigration & Customs Enf't Div. of Dep't of Homeland Sec., 510 F.3d 1, 21-22
(1st Cir. 2007)(emphasis supplied, internal citations and quotation marks omitted).
The Court cites Battista v. Clarke, 645 F.3d 449, 454–55 (1st Cir. 2011), in support of its
conclusion that Defendants in this case were deliberately indifferent. This case, however, is
nothing like Battista. In that case, over fifteen years elapsed between Battista’s first request for
hormone therapy treatment and the lawsuit, and ten years between when doctors opined that
hormone therapy treatment was indicated and the lawsuit. Along the way, Battista sought to
mutilate herself and the prison did nothing to address this risk of harm. Id. In the present case,
BCHOC has taken steps all along to reduce the risk of infection—perhaps not in the way the
Court might wish, but it cannot be said that they did nothing as in Battista, where the First
Circuit said:
Yet this would be a much harder case if defendants had proffered a persuasive and untainted professional judgment that—while hormone therapy would help Battista—the dangers, security costs and other impediments made it infeasible. For the problem is not one of callous guards or inept medical care but of conflicting considerations.
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Id. In the current case, Defendants have offered professional opinions from ICE regarding
the dangers of releasing detainees, almost all of whom were ordered detained by Immigration Judges. And Defendants have submitted an affidavit of an experienced doctor who has over twenty-five years of experience in institutional medicine to the effect that BCHOC has a solid, comprehensive plan in place for COVID-19 which complied with all available guidance. See Affidavit of Nicholas Rencricca, M.D., Exhibit 1 to dkt. # 35. This case is, therefore, nothing like Battista.31
The Court also cites Pesce v. Coppinger, 355 F. Supp. 3d 35, 47 (D. Mass. 2018), a case in which Judge Casper found that a prison’s blanket refusal to consider methadone treatment for a potential inmate with opioid abuse disorder constituted deliberate indifference. In the present case, however, Defendants took steps to address the risk of COVID-19. This case is therefore not like the Pesce case where there was a single means of dealing with plaintiff’s medical needs—i.e., give methadone – which was refused. And, as argued above, because the Court is wrong that Defendants have not released detainees or considered their particular medical needs, Pesce is also not on point.
Much closer to this case is Baez v. Moniz, 20-10753-LTS (D.Mass. May 18, 2020, docket # 65). In that case, a purported class of pre-trial detainees made claims similar to the
31 Moreover, in Battista, the defendants changed their position during the litigation in such a manner as to eviscerate the Court’s faith in their proffered explanations: “It was only after what the judge perceived to be a pattern of delays, new objections substituted for old ones, misinformation and other negatives that he finally concluded that he could not trust the defendants in this instance.” Id. at 455. That has not occurred here- in this case Defendants have been steady in their explanations and have given the Court no cause to doubt their sincerity or integrity.
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class of plaintiffs in this case regarding the risk of infection with COVID-19. Judge Sorokin
denied the preliminary injunction motion because he found that plaintiffs could not show that the
Plymouth County Correctional Facility (“PCCF”) had been deliberately indifferent to the “three
broad types of risk COVID-19 creates in a congregate setting like a prison: the danger that
the virus will be brought into the setting; the risk that the virus will spread within the setting once
there, and the need to monitor whether and to what extent the virus may be present in the
setting.” Id., at 15. The steps that PCCF has taken to minimize these three categories of risk are
virtually all steps that have been taken by BCHOC.32
32 All of the following steps have been taken by both PCCF and BCHOC: All detainees and inmates entering the facility are screened for symptoms, then held in individual cells in an intake quarantine unit for fourteen days. Staff are encouraged to stay home if they are sick, temperatures are checked upon their arrival, and they have face masks they are required to wear while working if they are within six feet of others. Only essential people are permitted to enter, with all family visits suspended, as are programming run by outside volunteers and work details requiring detainees to leave the facility. Travel outside the facility has been limited, with most (if not all) court appearances occurring by video. When a new inmate demonstrates symptoms, he is promptly tested and placed in isolation; if the results of the test are positive, he is placed in an isolated cell. When staff members tested positive, efforts were made to identify those who had close contact with them—including, on multiple occasions, reviewing security camera footage to trace the person’s contacts—and steps were taken to quarantine the relevant people. Face masks have been distributed to all detainees and staff on multiple occasions, with policies adopted requiring their use when detainees leave their housing units and when staff has close contact with detainees. The overall population of the facilities has been steadily declining since the beginning of April, and the (proposed or actual) classes of plaintiffs have diminished in size as well. All housing units that include federal detainees are substantially under their capacity at both institutions. Steps have been taken to increase sanitization and to decrease close interaction at meal times. BCHOC has actually gone further in this regard, by delivering meals to detainees. Face masks were distributed to all detainees and staff on multiple occasions and all detainees are required to wear a face mask anytime they leave their cell or bunk area. Staff are required to wear face masks if they are working within the secure perimeter and if they come into close contact with other individuals. Medical staff received training on how to detect and treat COVID-19, adopted testing criteria based on state and federal guidelines, and took steps to identify and monitor detainees with known risk factors making them especially vulnerable to the virus (as regards BCHOC, see affidavit of Dr. Nicholas Rencricca, which Defendants submit is more persuasive than the deposition testimony of Ms. Floriano, who was likely confused by the question posed regarding disparate treatment of detainees with comorbidities – in any event, her
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In addition, the Court’s conclusion regarding deliberate indifference is anchored to a view of the litigation’s course that fails to reflect the rapid and adversarial pace of the litigation. In just under eight weeks, the parties and the Court have created more than 180 docket entries and participated in at least seven hearings. So when the Court says “[y]et the record tends to show that the government never formulated a plan to determine a safe population level or how to reach that mark,” this is a bit like the Court having gotten in the driver’s seat and blaming the passengers for not helping steer the car. Decision at 26. The Court faults Defendants for not being more aggressive to reduce the detainee population “to a density that could safely withstand the COVID-19 onslaught.” Id., 26-27. But the problem is that this takes Defendants’ actions out of the reality of what the Court was doing, as if Defendants’ disagreement over who should be released and the necessity of continued releases somehow nullified what the Court was doing. Plaintiffs were pushing for release of all detainees, so it was principally the Court that was pushing the idea of releases to a safe level of population. So the Court put the mechanism in place without a firm idea of the end goal – what a safe population level is. Even if this can be justified for expediency’s sake, it cannot be the basis of shifting blame to Defendants for not coming up with the answer to a question the very premise of which was one with which Defendants disagreed. And, more to the point, when the Court invited input on that very question and Defendants attempted to answer it, their extensive submission was batted away with a marginal order that gave Defendants’ submission no consideration whatsoever.33
answer does not reflect policy or practice at BCHOC). In addition, the BCSO medical vendor (CPS) updates its medical staff and all BCSO staff as to any changes in federal and state guidelines on any and all matters pertaining to COVID-19 regularly.
33 See p. 12, supra.
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The Court concedes that Defendants have not sat idly by in the face of the pandemic threat: “[t]he Court acknowledges and commends the significant steps that BCHOC has taken in order to prevent the spread of COVID-19 at the facility and treat anyone infected.” Id. at 13. “The Court recognizes the commendable efforts of the BCHOC staff, who have been operating in difficult and risky conditions where much is unknown.” Id., at 14. And, at the April 3, 2020 hearing, the Court said, “I want to address the letter that Mr. Kanwit has filed on behalf of the respondents, ICE. But my question -- I much appreciate it. It shows that the -- [in] these proceedings, people are understanding the Court's concerns and I'm very grateful. I mean that sincerely. …Here now certain individuals are being released by ICE, and I express my appreciation for that.” Transcript, 4/3/20, at p. 4-5.34
Yet, the Court seems to exaggerate the threat of BCHOC as an incubator of the COVID19 virus:
The virus, if allowed to thrive in the detention centers, will migrate back into our neighborhoods. At least eleven officers or other staff, one immigration detainee, and one state inmate at Bristol County House of Correction have already tested positive for COVID-19; many others have yet to be tested. Employees returning to their homes after their shifts may expose their families, friends, bus drivers, cashiers, and doctors. The chain of infection thus grows. Were the government to loose an uncontainable viral outbreak from within its detention centers, it would betray its duty to the public, not just to the detainees. Decision at 32.35 But there is no evidence that the 11 were infected within BCHOC and bringing
34 In light of this and similar statements by the Court, its reference to Herman Melville’s character, Bartleby the [Reluctant] Scrivener, is mystifying and denigrates the enormous efforts made by ICE and the Bristol County Sheriff’s Office, who day in and day out, are on the front lines.
35 To similar effect, the Court stated that it “presumes that, in ordering the release on bail 31

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it out, versus contracting it on the outside. And the one positive detainee was likely a false
positive. See Declaration of Steven Souza, Ex. 1. The statistics support Defendants’ position that
the risk of infection in the greater Massachusetts community exceeds that within BCHOC. Over
the course of this litigation, the rate of infection outside BCHOC has greatly exceeded the rate
inside. While this is not to say that additional precautions are unwarranted, it very much
indicates that Defendants’ alleged failures do not constitute deliberate indifference.36
The Court disagrees with the relative weight given by Defendants to the competing
considerations of security and safety versus risk of infection. But even if the Court’s different
weighing of those concerns is the better view, which Defendants do not concede, that does not
make the disagreement into deliberate indifference. As the Circuit Court has said:
Any professional judgment that decides an issue involving conditions of confinement must embrace security and administration, and not merely medical judgments.... The administrators are responsible to the state and to the public for making professional judgments of their own, encompassing institutional concerns as well as individual welfare. Nothing in the Constitution mechanically gives controlling weight to one set of professional judgments.
of a portion of the Detainees, it has substantially reduced the risk of infection for those who remain. Yet the threat persists.” Dkt. # 175 at p. 12. “In sum, the virus is clearly present in BCHOC, though its current prevalence is unknown.” Id. at 13. But there has been only one positive test among detainees, and likely a false positive at that. And as to the staff, their positive tests (11 out of approximately 600 employees) do not show that the virus is “clearly present in BCHOC,” only that the staff could potentially have contracted it outside and possibly, but not definitely, transmitted it to others. But given the very limited positive results, it is unclear if such transmission has actually occurred at BCHOC. For example, not one of the unit mates of the detainee who tested positive also tested positive, and, in fact, that one detainee tested negative on re-testing. See declaration of Steven Souza, Exhibit 2 hereto, ¶ 13.
36 The Court notes that many have not been tested, which is true, although testing of the detainees is largely complete. But it cannot be said that the failure to conduct widespread testing of asymptomatic individuals “shocks the conscience” when neither the CDC nor DPH were recommending it.
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Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir.1993)(cited in Battista, at p. 455). Similarly, Judge Stearns recently said:
While I am as concerned as any judge with the impact of COVID19 on prisoners, unless society is to make the decision that all prisoners should be released because of the pandemic, there must be a means of differentiating those acceptably eligible for release from those who, if released, pose an unacceptable risk to others.
United States v. Pereira, 19-cr-10446-RGS, May 10, 2020 Memorandum and Order at p. 4 (also citing Christie v. Commonwealth, 484 Mass. 397, 398 (2020)(a judge must balance the risks posed by releasing a defendant (i.e., flight and danger to others or to the community through further criminal acts with the pandemic-related risk if kept in custody).
IV. The Burden on Defendants Has Not Been Adequately Considered “…Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien's status without running the risk of the alien's either absconding or engaging in criminal activity before a final decision can be made.” Jennings v. Rodriguez, 138 S. Ct. 830, 836, 200 L. Ed. 2d 122 (2018). At many points in its Decision, the Court refers to the “silence” of the record or the absence of evidence. Frequently, as with contact tracing, this is notwithstanding that the Court did not ask for evidence on that subject, nor did the parties have reason to anticipate the Court’s interest given that prior to the preliminary injunction hearing the Court’s focus almost entirely on the social distancing question. Similarly, on the issue of whether the Court’s order restricting ICE from placing any new detainees in the BCHOC civil immigration population creates a burden on ICE, the Court never said before the preliminary injunction that ICE could not place new detainees at BCHOC. So of course the record is silent. And, in fact, there is a burden on
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ICE. See Declaration of Alan Greenbaum, attached hereto as Exhibit 3. According to Assistant Field Office Director Greenbaum, not being able to transfer the five to ten detainees who are released per month from BCHOC criminal confinement to ICE detention will create a greater risk of detainees being exposed to, or exposing others to, COVID-19 as they are transferred between detention facilities and result in significant additional expenses associated with placing detainees on transfer flights.37 Id., ¶ 4. This is, of course, one of the issues raised by Plaintiffs in this litigation, i.e., the increased risk of infection stemming from inter-facility transfers. Moreover, many facilities now require a 14-day quarantine for newly admitted individuals which can further delay administrative removal proceedings and lead to prolonged detention at government expense. Finally, most of the other institutions in the region have some type of litigation pending relating to COVID-19 and seeking to restrict the admission of new detainees, thus further complicating ICE's ability to place detainees. Id.; see, e.g., Yanes, et al. v. Martin, et al., (D.R.I. 2020), case number 1:20-cv-00216-MSM-PAS (concerning Wyatt); Gomes v. Wolf, 20-cv-00453-LM (D.N.H. 4/17/20)(concerning Strafford); Augusto v. McDonald, 20-cv10865-ADB (D.MA, 4/8/20)(concerning Plymouth).
And, as was previously pointed out, a release of a criminal inmate to an ICE detainer may occur with little to no warning. It makes much more sense, from a pandemic perspective, to allow BCHOC to screen such a person and then transfer him into civil detention at BCHOC where there is continuity of medical care, familiarity with the individual and an opportunity to observe him or her over time prior to the transfer. The alternative, that the individual is shipped off to another facility that does not know him, is precisely the kind of inter-facility transfer that
37 Such transfers may require additional flight operations by ICE chartered aircraft in and out of the region, at an approximate cost of $85,000 per flight. Id., ¶ 4.
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Plaintiffs’ experts decried as increasing the risk of infection and is certainly a burden on ICE as well.
The prohibition on transfers out from BCHOC, absent a negative virus test or a refusal, should also be reconsidered. First, the petition and complaint in this case concern Bristol County House of Corrections detainees and the risk of infection at Bristol. See Defendant’s Reply to Plaintiffs’ Further Brief, dkt. # 179. Moreover, as argued therein, the requested restrictions on Defendants would deeply involve the Court in micromanaging ICE’s affairs, essentially requiring a separate phase of litigation to review the conditions at each and every location to which ICE proposes to transfer a detainee. That is neither workable nor appropriate. As the Court itself has said, “[b]e it remembered that this is a habeas class action, not institutional reform litigation.”38 Dkt 144. There is, also, reason to doubt the Court’s authority to prevent a transfer out; see, e.g., Gomes v. Dept. of Homeland Security, 20-cv-00453-LM (D.N.H., May 19, 2020)(copy submitted to the Court on May 22, 2020).
There is also a very significant burden on the Bristol County Sheriff’s Office. Within hours of the Court’s preliminary injunction decision, the portion of the order requiring staff testing was widely discussed among staff. See Declaration of Steven Souza, Exhibit 2 hereto. Many staff expressed a reluctance to be tested. Id. The impact of refusals on BCHOC’s ability
38 The Court also said “it is not the function of this Court to micromanage the detention facility or ICE's priorities.” Transcript, 4/3/20, at p. 16. At the preliminary injunction hearing, the Court ordered testing of all detainees and staff that come into contact with detainees, but did not restrict transfers out of BCHOC. In response to a notice of intent to transfer two detainees out, the Court modified its order to prevent such transfers absent a testing of the intended transferees and a negative result or a refusal to be tested. The Court now appears to be insisting not just that any intended transferee be cleared of COVID-19, but also that all detainees and staff be tested before such transfers occur. See dkt. # 180 and 181.
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to operate, and to maintain a safe environment for both detainees/inmates as well as the public, is significant. Under the CDC guidelines, DPH guidelines and BCHOC’s own medical guidelines (which comport with state and federal guidelines), a presumed positive test means that correctional and other staff who never showed symptoms must stay out of work for between 7 and 14 days and until they are medically cleared by their doctor to return.39 Id. Significant disruptions to staffing and the schedules can be expected. Id.
Also, the cost of testing the 600 staff members at BCHOC that might come into contact with detainees has recently been quoted at $200 per test. CPS is not under contract to provide such services for staff, so BCHOC has obtained a quote from a third-party vendor. Upon information and belief, this is how the voluntary testing of Department of Corrections (“DOC”) staff is being conducted. At that rate, testing all staff would cost ICE, for just one facility out of many hundreds nationwide, at least $120,000. Given that the testing represents merely a “snapshot” in time, that is a lot of money for not a lot of benefit.40
V. Released Detainees Are Not Complying with the Court’s Order In preparing this brief, it has come to the attention of undersigned counsel that numerous detainees who have been released have been violating the conditions of their release. At least
39 Because this is unpaid time, staff will resent the economic pressure pushing them to be tested despite being asymptomatic.
40 Many additional questions have been raised regarding the testing of staff. For example, What rights do the employees have, particularly if they are asymptomatic? Would people who are tested be required to isolate at home until the results come back, as current BCHOC policy states? Will those who refuse tests be required to stay out of work, and, if so, who is going to pay them? They cannot be forced to use sick time and BCSO would not pay them under current policies. Is there a plan for retesting (at another $120,000) in light of the fact that staff goes home every day? How will BCHOC replace staff that are required to stay at home? Who will pay for those additional costs?
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nine of the 44 individuals released by the Court on bail have violated the conditions of their release by leaving home multiple times during the quarantine period and afterwards when they are subject to house-arrest.41 That is twenty percent (20%). And many of these have been multiple violations. For example, Ranferi Ramirez-Maldonado left home (7) times in less than a month. Not to be outdone, Gabino Del Angel Moran left his house (214) times between April 10 and May 8, 2020. Desmond Joseph left his house (78) times in a one-month stretch. And although Carlos Gutierrez Deleon may not have violated his stay-at-home condition as many times with “only” (8) violations, an identified caller independently reported that he did not obey quarantine orders and remain in house. The caller also stated that Gutierrez Deleon was out drinking and doing drugs.42
The Defendants have maintained throughout this litigation, which is still less than two months old, that while the danger of COVID-19 is significant, it is a mistake to compare an overly pessimistic view of what is likely to happen within BCHOC with an equally unrealistic and too rosy view of what is going on upon release. Given the extremely low level of positive tests at BCHOC, and now with the information that detainees are essentially thumbing their noses at the Court, exposing themselves and their family to greater risks of infection, it is time
41 The Court ordered: “Once they're there they are to quarantine themselves for 14 days from the day they in fact leave 14 the detention facility. That's a full quarantine, they are not to leave the house for any reason. Thereafter they remain under house arrest…. They are not to leave, save to attend immigration proceedings or to attend… to their own medical needs should those needs be so severe that they have to actually go to a doctor's office or to a hospital.” Transcript 4/3/20 at p. 9.
42 One of the individuals that ICE agreed to release, Kokou Aziabo, violated the conditions of his release by ICE as well. He left his home 46 times during the first two weeks of his release. From April 6, 2020 through May 8, 2020 (when the data was compiled), Aziabo left his home an astounding 104 times. The first two days he left his home 17 times.
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for the Court to re-assess. This is why Defendants sought information regarding the home situation. Without that
information, the Court is assuming that the home situation is safer, without looking at the actual facts. We do not know anything about how many people are in a particular home, whether they are working outside the home, what size the various rooms are, how many bathrooms there are— in short, all of the things the Court considered in making a generalized determination that population reduction in BCHOC was required to allow social distancing.43 There is no assurance that appropriate isolation and social distancing will occur upon release. This is made all the more clear by the extensive disregard for the Court’s release order shown by at least 20% of the released detainees. It should order Plaintiffs to provide the discovery fairly sought by Defendants and it should take a good, hard look at whether its operating assumptions regarding release are supported by the evidence.
CONCLUSION The Court is absolutely correct that the coronavirus pandemic is a challenge unprecedented in our lives. But the Court’s determination that more should have been done is an argument with broader social policy regarding detention, and is less about whether Defendants have acted with such complete neglect as to meet the constitutional standard. Defendants participated in the release of detainees, they took extensive steps to minimize the risks to detainees, and they complied with all available guidance from the CDC and DPH. They were not deliberately indifferent.
43 These facts are material if the Court is making a determination that the detainees are safer outside BCHOC than they are inside, as opposed to an assumption. See Dkt. # 180.
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Respectfully submitted, ANDREW E. LELLING, United States Attorney

May 22, 2020

By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: May 22, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

39

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO; )

JULIO CESAR MEDEIROS NEVES; and

)

ALL THOSE SIMILARLY SITUATED,

)

)

Petitioners,

)

)

C.A. No. 20-10617-WGY

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent.

)

__________________________________________)

DECLARATION OF JUDY BORGES

I, Judy Borges, do hereby depose under oath and with personal knowledge the following:

1. Since November 26, 2011, I have been Director of Medical Services, then, in 2019, promoted to Assistant Deputy Superintendent of Medical Services, for the Bristol County Sheriff’s Office. As Assistant Deputy Superintendent of Medical Services, I am responsible for, among other things, coordinating with the Correctional Psychiatric Services (“CPS”) for the medical and mental health care for all detainees and inmates at the BCSO facilities, including Bristol County House of Corrections (“BCHOC”). In this regard, I work closely with CPS senior staff, including Deborah Jezard and Dr. Nicholas Rencricca, and others, as well as with senior administrators within BCSO including Superintendent Steven Souza and Sheriff Thomas Hodgson.
2. I am aware of the litigation in this case. I am also aware that the Court ordered Defendants that all staff that come in contact with detainees, as well as all detainees, be tested for COVID-19 using FDA-approved RT-PCR testing. I have reviewed that

Case 1:20-cv-10617-WGY Document 185-1 Filed 05/22/20 Page 2 of 3
attached spreadsheet and believe it to be accurate. It shows that all immigration detainees at BCHOC have now been tested except for seven that refused testing. All detainees that have been tested have been found negative, i.e., to not be infected with the COVID-19 virus. This includes the only detainee who had previously tested positive. This person was tested at an outside hospital and was retested two days later at our facility. This second test was negative, as were all the tests of that person’s unit mates who agreed to be tested. All of these tests came back negative, which indicates that the one positive test was likely a false positive. 3. I am also aware of a bid for testing of staff received by BCSO. Because CPS is not contractually obligated to provide medical care to BCSO staff, testing would have to be conducted by a third party. The third party that has conducted much of the Department of Corrections testing (which was voluntary, not mandatory) was done by this entity, I am told. The price quoted was $200 per test; for approximately 600 staff members who may come into contact with detainees, the cost would be at least $120,000. This would provide information as to the dates of testing only (which could not be feasibly done on a single day) and would not reflect whether a staff member became infected immediately after the test was conducted. I am not aware of any CDC or DPH requirement that asymptomatic individuals be tested. It is my belief that testing of all those who come into contact with someone who has tested positive is both sufficient and cost-effective. Moreover, the fact that there has been no outbreak of the coronavirus among detainees at BCHOC in the last three months is a strong indication that the steps taken to date have been effective.
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4. Mandatory testing of staff raises a number of difficult personnel issues for BCSO. These include, but are not limited to, the following: 1. What rights do the employees have, particularly if they are asymptomatic? 2. Would people who are tested be required to isolate at home until the results come back, as current BCHOC policy states? 3. Will those who refuse tests be required to stay out of work, and, if so, who is going to pay them? They cannot be forced to use sick time and BCSO would not pay them under current policies. 4. Is there a plan for retesting (at another $120,000) in light of the fact that staff goes home every day? 5. How will BCHOC replace staff that are required to stay at home? 6. Who will pay for those additional costs?
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 22nd DAY OF MAY, 2020.
/s/ Judy Borges Judy Borges
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Case 1:20-cv-10617-WGY Document 185-2 Filed 05/22/20 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO; )

JULIO CESAR MEDEIROS NEVES; and

)

ALL THOSE SIMILARLY SITUATED,

)

)

Petitioners,

)

)

C.A. No. 20-10617-WGY

v.

)

)

STEVEN J. SOUZA,

)

)

Respondent.

)

__________________________________________)

FOURTH DECLARATION OF STEVEN SOUZA

I, Steven Souza, do hereby depose under oath and with personal knowledge, and from

information provided to me by individuals with personal knowledge, the following:

1. I been apprised of the Court’s decision rendered orally on May 7, 2020.

2. One portion of the Court’s order requires that all “staff from Sheriff Hodgson on

down are to be offered COVID testing and that if anyone refuses a test ‘they are

presumed to be positive for the virus.”

3. Under the CDC guidelines, DPH guidelines and our own medical guidelines

(which comport with state and federal guidelines), a presumed positive test

means that correctional and other staff who had a confirmed positive COVID-

19 test but never showed symptoms must stay out of work for between 7 and

14 days, depending on the advice of their physician, assuming the individual

has had no subsequent illness.

4. I have been informed that many correction officers and staff members have said

that they will not agree to be tested if they are not symptomatic because they

Case 1:20-cv-10617-WGY Document 185-2 Filed 05/22/20 Page 2 of 4
consider the testing procedure to be extremely invasive and uncomfortable. 5. Any officers and staff that refuse to be tested and are presumed, by the Court’s
order, to be infected despite the absence of actual symptoms and without any actual positive test results, will be required by CDC and BCHOC guidelines to not work for 14 days. 6. Any officers and staff that agree to be tested will have to remain out of work until such time as the results of the tests are reported, under CDC and BCHOC guidelines. Moreover, current BCHOC Medical Guidance indicates that persons tested cannot return to work until cleared by their medical doctor. 7. Neither the BCHOC nor any correctional facility in Massachusetts to my knowledge has access to any rapid testing equipment and all of the tests performed at the BCHOC have to be individually transported to Tufts Medical Center and the Department of Public Health in Boston to be analyzed. The results typically take up to 3 days to become available. 8. Moreover, I am informed by CPS, our contracted health provider, that the “socalled” rapid test currently used in hospitals is not terribly accurate with between 15%-40% error rates being reported. I note that the one ICE Detainee who tested positive at the hospital on May 1st was re-tested on May 6th and the re-test was negative raising the suspicion that the first test may have well been a “false positive.” 9. If a significant number of officers and staff refuse testing and have to be absent for 14 days, the BCHOC cannot be adequately staffed. This would have widespread impacts on facility security, maintenance and cleaning including
2

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sanitization, medical care, food preparation, food delivery – in short, every aspect of BCHOC’s operation will be impacted. This will negatively impact the care and custody responsibilities for inmates and detainees. 10. I have relayed the substance of the Court’s May 7th order to CPS, our health care provider. A senior CPS staff member has questioned the practicality of the Court’s order due to the fact that even if a staff member agrees to be tested on a particular day, they could be exposed to the virus while awaiting the results or within the seven day isolation protocol period. So a negative test result will not assure that the individual is still uninfected when they return to work. 11. CPS is not under a contractual obligation to provide medical services for BCHOC staff. CPS is an independent contractor. Even if the contract issues could be worked out, CPS has also informed me that the testing is not simple. CPS typically has 10 nurses on duty during the first shift, 10 on the second shift, and 5 on the third shift. This is for the entire facility. In addition, from Monday through Saturday from 8 a.m. to 4 p.m., there are three nurse practitioners on duty. In order for the medical staff to do their normal medical care of the detainees and inmates, it will be very difficult to take samples from approximately 613 staff members and 80 detainees. Each sample procedure will take at least ten to fifteen minutes from start to finish. For certain detainees there will also be additional time in getting the detainees from their units to the medical unit. Other detainees can be tested in their housing units if they do not report symptoms. Even without the transport time, testing everyone the Court has ordered tested will take approximately 175 hours. It cannot be done in a non-stop, back-to-back
3

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manner because different staff work on different days and shifts, there is detainee transport from their units to the medical unit and back, and the medical staff will have their normal work load to handle as well. It could easily take a month to get everyone tested. By the time the testing is complete, the tests for those tested at the outset will be outdated and unreliable. Even if CPS agreed to test BCHOC personnel, and if these personnel agree to be tested, there is no assurance that these personnel will agree to allow CPS to perform the testing as opposed to seeking outside medical care. 12. Moreover, the CPS representative indicated that testing asymptomatic persons, staff or prisoners, has never been required by the CDC and is not being done in any correctional facility that they are aware of. SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS TWELFTH___ DAY OF MAY, 2020.
/s/ Steven Souza STEVEN SOUZA, Superintendent Bristol County House of Corrections ____________________________________
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 Case 1:20-cv-10617-WGY Document 196 Filed 06/02/20 Page 1 of 25
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO MODIFY PRELIMINARY INJUNCTION

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TABLE OF CONTENTS Page
INTRODUCTION. ..........................................................................................................................4 LEGAL STANDARD……………………………………………………………………………..4 ARGUMENT I. The Court’s Prohibition On Transfers-in Is Critical And Necessary To Prevent
Increased Risk Of A COVID-19 Outbreak ..........................................................................5 A. Defendant’s Argument.............................................................................................5 B. Plaintiffs’ Response .................................................................................................6 II. Defendants’ Excuses For Not Complying With The Staff Testing Component Of The Preliminary Injunction Are Speculative, Premature, And Overblown ..............................12 A. Defendant’s Argument...........................................................................................12 B. Plaintiffs’ Response ...............................................................................................14 III. Defendants’ Portrayal Of Alleged Violations Of Bail Conditions Is Selective And Inaccurate, And Does Not Justify Any Changes To The Preliminary Injunction .............17 A. Defendant’s Argument...........................................................................................17 B. Plaintiffs’ Response ...............................................................................................18 IV. The Court’s Orders Are Protecting the Rights of Class Members And Preventing Harm To Them, BCHOC Staff, And The General Public .................................................21 CONCLUSION ..............................................................................................................................23
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TABLE OF AUTHORITIES

CASES

Page(s)

Agostini v. Felton, 521 U.S. 203 (1997) ....................................................................................5, 14

Ahmed v. Rosenblatt, 118 F.3d 886 (1st Cir.1997) ..........................................................................4

CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 48 F.3d 618 (1st Cir. 1995) ....................................................................................................................................8

Dr. Jose S. Belaval, Inc. v. Perez-Perdomo, 465 F.3d 33 (1st Cir. 2006) .......................................4

Lepore v. Vidockler, 792 F.2d 272 (1st Cir. 1986) ..............................................................5, 12, 13

Roger Edwards LLC v. Fiddes & Sons, Ltd., 427 F.3d 129 (1st Cir. 2005) .......................... passim

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ..........................................................5

Savino v. Souza, 2020 WL 1703844, ___ F.Supp.3d ___ (Savino I).........................................7, 15

Savino v. Souza, 2020 WL 2904923, ___ F.Supp.3d ___ (Savino II) ................................... passim

United States v. Kayser–Roth Corp., 272 F.3d 89 (1st Cir. 2001)...................................................4

STATUTES, RULES, AND REGULATIONS

8 U.S.C.A. § 1226(a) .....................................................................................................................11

8 USC §1182(d)(5) ........................................................................................................................11

Federal Rule of Civil Procedure 60(b)................................................................................... passim

OTHER AUTHORITIES

GAO, Alternatives to Detention (Nov. 2014), available at https://www.gao.gov/assets/670/666911.pdf .....................................................................11

CDC, Interim Guidance 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 (accessed May 30, 2020) .........................7

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Who We Are, available at https://www.ice.gov/about .............................................................................14

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INTRODUCTION After briefing, expedited but targeted discovery, and extensive hearings in this matter, the Court on May 7, 2020 entered a narrow and carefully crafted preliminary injunction, which it explained in a detailed written opinion. Savino v. Souza, ___ F.Supp.3d ___, 2020 WL 2404923 (D. Mass. May 12, 2020) (Savino II). Following Defendant’s motion to reconsider, treated as a motion to modify, the Court has directed Plaintiffs to address three specific issues: 1. The “[p]roblem of transfer between institutions caused by this Court’s bar on adding
additional detainees at Bristol”; 2. “Operational problems caused by the requirement that all staff be tested”; and 3. “The allegations that certain detainees released on bail are violating their bail
conditions.” ECF 186. As explained below, Defendant has not demonstrated that any of these three issues – to the extent they exist at all – require any changes to the preliminary injunction. Accordingly, Defendant’s motion should be denied in its entirety.
LEGAL STANDARD Federal Rule of Civil Procedure 60(b) sets forth the conditions under which a preliminary injunction may be modified. Dr. Jose S. Belaval, Inc. v. Perez-Perdomo, 465 F.3d 33, 37-38 (1st Cir. 2006). As the First Circuit has explained, the circumstances warranting modification of a preliminary injunction under Rule 60(b) are limited: For example, under Rule 60(b)(1) the defendant would have to show “mistake, inadvertence, surprise, or excusable neglect,” as those terms are used within the rule. Under Rule 60(b)(5) the defendant would have to show that “it is no longer equitable that the judgment should have prospective application,” and that there has been the kind of “significant change” in circumstances that the Rule requires. See, e.g., United States v. Kayser–Roth Corp., 272 F.3d 89, 95–96 (1st Cir. 2001). Under Rule 60(b)(6), the defendant would have to show that there are “exceptional circumstances justifying extraordinary relief.” Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir.1997).
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Id. at 38; see also Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir. 1986) (“since rule 60(b) provides for extraordinary relief, a motion thereunder may be granted only in exceptional circumstances.”).
The party seeking relief bears the burden of demonstrating that one of the conditions of Rule 60 has been met, see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992), and may not rely on mere speculation. Roger Edwards LLC v. Fiddes & Sons, Ltd., 427 F.3d 129, 136 (1st Cir. 2005). Moreover, relief is normally not appropriate when based on conditions that were known or foreseen at the time the order was issued. Agostini v. Felton, 521 U.S. 203, 217 (1997) (“Ordinarily . . . modification should not be granted where a party relies upon events that actually were anticipated at the time the order was entered.”).
ARGUMENT I. The Court’s Prohibition On Transfers-in Is Critical And Necessary To Prevent
Increased Risk Of A COVID-19 Outbreak. The Court’s preliminary injunction provides that “[n]o new immigration detainees may be admitted to Bristol County House of Correction.” Savino II, 2020 WL 2404923 at *11. In explaining its reasons for enjoining the admission of any new immigration detainees, the Court noted that “the chances of a more dangerous outbreak would rise were additional detainees to be added to the mix.” Id. at *6. As such, this Court concluded that “[b]arring the government from adding new detainees ameliorates the twin problems of detainee density and transience, thus lowering the chances of further spread.” Id. Defendant has presented no valid reason under Rule 60(b) justifying a change in this portion of the preliminary injunction. A. Defendant’s Argument Defendant seeks to undo the increased safety achieved by this Court’s orders, arguing that the inability to incarcerate additional persons in BCHOC results in “a burden on ICE.” See
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ECF 185 (Defendant’s Motion for Reconsideration (“Def. Brf.”) at 34. Defendant relies on the Declaration of Alan Greenbaum, an Assistant Field Officer for ICE, who speculates that transfers to other facilities “may require additional flight operations by ICE chartered aircraft in and out of the AOR [area of responsibility]. Such flights cost approximately $85,000 per flight.” Declaration of Alan Greenbaum (“Greenbaum Dec.”) ¶ 4. Mr. Greenbaum also posits that there may be potential operational burdens or complications to transfers because of active litigation or quarantine procedures at other facilities, which may cause “administrative delay.” Id. Finally, he hypothesizes that ICE transfers to other facilities “create a greater risk of detainees being exposed to, or exposing others to, COVID-19….” Id. ¶ 4.
B. Plaintiffs’ Response The Court’s order enjoining new admissions is instrumental in combatting the spread of COVID-19 and protecting the constitutional rights of class members in two important ways: 1) by addressing population density; and 2) by limiting the potential vectors by which COVID-19 can be introduced into the facility. Defendant’s request to be allowed to admit 5-10 new individuals each month to immigration detention would entirely undermine all that the Court has done to reduce the population density since the inception of this litigation, and would quickly return BCHOC to its former state. Particularly in light of the population density issue, none of the issues raised by Defendant regarding transfers even comes close to meeting the standards of Rule 60(b) justifying modification of the preliminary injunction. To the extent that any burdens actually exist, they are normal bureaucratic issues faced by numerous facilities across the country that do not justify the extraordinary relief that Defendant requests.
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Population Density. There is complete medical consensus that social distancing is one of the most critical tools to combat the spread of COVID-19.1 This Court and many other courts have recognized that social distancing is vital, and that Plaintiffs’ inability to socially distance in Bristol County has led to extremely dangerous conditions. See, e.g., Savino v. Souza, 2020 WL 1703844, ___ F.Supp.3d ___ (Savino I), at *4 n.7 (highlighting “the vigorous recommendations of infectious disease experts worldwide, including in the federal government, to maximize social distancing.”). Further, it is abundantly clear that reducing population density is critical to allow social distancing to occur: “[w]ere it not for the Court’s bail orders and preliminary relief … the Detainees would be packed together in close quarters where social distancing is impossible.” Savino II, 2020 WL 2404923 at *7.
Despite the clarity of the need to social distance and the value of population reduction in aiding social distancing, Defendant again asks this Court to allow them to add more people to the immigration detention population. In doing so, Defendant ignores entirely the impact that new admittees would have on density and on the ability to socially distance. See Def. Brf. at 34-35. However, the impact is plain: Whether a person is transferred from state confinement at Bristol, from a separate facility, or from the community at large, their admission would increase density and make social distancing all the more impossible. Savino II, 2020 WL 2404923 at *7 (noting that “it is likely that the gains in density reduction achieved through the bail orders would be jeopardized by new arrivals”).
Currently, the Court has a clear picture of the population density, the testing status, and the individual circumstances of each detainee. The bar on admission of detainees is thus a
1 See, e.g., CDC Interim Guidance Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (noting that social distancing is a “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”).
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quintessential example of preserving the status quo. CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 48 F.3d 618, 620 (1st Cir. 1995). Defendant seeks to admit 5-10 additional individuals per month from Bristol’s criminal population, and an unspecified number from elsewhere. See Greenbaum Dec. ¶ 4. At this rate, the population at Bristol County would be back to the dangerous density it had at the inception of this case within a matter of months, if not weeks.
New Vectors of Infection. This Court’s injunction on new admittees has also helped to limit the potential vectors of infection who may come in contact with immigrant detainees. By seeking to introduce people from outside Bristol County immigration detention into the population, Defendant proposes to multiply the number of vectors of infection.
The introduction of new people should not be allowed. The state inmate population – from which Defendant primarily highlights it would like to transfer-in – provides a telling example of the dangers of doing so. In Bristol’s criminal detention population, there is no universal testing order and no hard limit on new admittees, leading to regular changes in the population. The difference between the two populations in the same facility is striking. In BCHOC’s criminal detention population, as of May 31, 2020, 122 COVID-19 tests have been administered to detainees/prisoners, out of a total population of approximately 600. See Declaration of Oren Sellstrom In Support Of Opposition To Defendant’s Motion For Reconsideration (“Sellstrom Dec.”), Ex. D. Of those 122 inmates who have been tested, 38 have tested positive. Id. This is a positive rate of over 30%, with the total number of cases still unknown because of minimal testing. In contrast, because of this Court’s bail orders and continuing oversight, Bristol’s immigration detention population has been reduced, has achieved
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nearly universal testing, and as of the filing of this brief has reported only one positive case among detainees.
The COVID-positive rate within the criminal population provides strong evidence that, absent this Court’s intervention, Bristol County’s policies would have resulted in similar conditions within immigration detention. The high rate of positive cases and the lack of testing or appropriate contact tracing in the criminal detention population also means that any transfers to the immigration population could have serious – if not fatal – consequences. Defendant’s request that those from a population with such a high rate of infection be transferred into immigration detention defies logic and demonstrates further knowing indifference to the safety of detainees and staff in Bristol. In fact, the only precaution Defendant cites is the medical screening protocol that this Court has already found insufficient to counter the risks inherent in adding to the population. See, e.g., Savino II, 2020 WL 2404923 at *6.
Defendant responds to the Court’s concerns about population density and infection spread by arguing that not admitting new people into Bristol County Immigration Detention is overly burdensome. As an initial matter, Defendant fails to note that most state criminal facilities in Massachusetts do not have immigration detention wings at all, and thus inmates are simply released from custody when their sentence is served, or ICE may pick them up and transport them elsewhere. Defendant does not explain why having Bristol operate in the same manner as nearly every other federal, state, county, or municipal jail in the Commonwealth is so problematic.
Defendant argues that it is somehow more dangerous for inmates to not be admitted to Bristol’s immigration detention because they will be transported to other facilities and “create a greater risk of detainees being exposed to, or exposing others to, COVID-19…” Def. Brf. at 34;
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Greenbaum Dec. at ¶ 4. It defies common sense and the logic of this Court’s orders for
Defendant to argue that those from the criminal population “create a greater risk of…exposing
others to COVID-19” and then request that they be transferred into immigration detention where Plaintiffs will be the victims of that risk.2
As to cost, Defendant cites Mr. Greenbaum’s declaration as saying that “such transfers
may require additional flight operations by ICE chartered aircraft in and out of the AOR. Such
flights cost approximately $85,000 per flight.” Greenbaum Dec. ¶ 4 (emphasis supplied). No
evidence has been presented that any flights have actually been chartered since the Court’s
preliminary injunction was entered nearly one month ago. Nor are flights even necessary to
transfer state inmates from Bristol County to other sites in southern New England where ICE
maintains cells. In fact, no evidence of any kind has been presented as to actual additional costs
incurred because of additional transfers. Even if such evidence were to be produced, the cost of
potentially transferring 5-10 detainees per month does not begin to outweigh the interests of
Plaintiffs in keeping population density at Bristol low and limiting the potential vectors by which COVID-19 can be introduced into the facility.3
2 For the class of individuals before this Court – the current immigration detainees at BCHOC – there is clearly no benefit, and significant potential for harm, from allowing new admittees to the facility. Elsewhere, Defendant emphasizes this very point. See Def. Brf. at 35 (“the petition and complaint in this case concern Bristol County House of Corrections detainees and the risk of infection at Bristol…”) (emphasis in original). Defendant’s argument in favor of allowing additional individuals to be transferred into Bristol does not address this point, but rather solely focuses on ICE’s supposed concern for individuals currently outside the facility. In light of Defendant’s deliberate indifference to the safety of the class, together with ready alternatives for those who might otherwise be transferred in, ICE’s concerns ring hollow. 3 The government’s credibility on these and other points must also be assessed in light of the remarkable assertions elsewhere in its brief that its statements should not always be taken at face value. For example, the government insists that its repeated “on the record” objections to voluntary releases in this case were meant with a wink – in effect, that the Court should have known that the government did not mean what it said. Likewise, the government claims that its objections before Immigration Judges considering whether to grant bond to certain class members should count now as voluntary release – implying, apparently, that its representations to Immigration Judges should not have been believed either. Regardless of whether Mr. Greenbaum’s statements about costs and charter flights are intended to fall into this category, Defendant presents no actual probative evidence to support its argument.
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Finally, Defendant’s arguments all rest on the flawed assertion that ICE must detain those released from criminal custody. ICE has within its broad discretion to arrest or not arrest those it suspects of immigration violations. See 8 U.S.C. § 1226(a). Even ICE’s own guidance directs that offices undertake an individualized evaluation of detainees for possible release because of COVID-19.4 Additionally, even for those subject to “mandatory detention,” ICE is not prohibited from employing alternatives to detention. See 8 U.S.C. §1182(d)(5). In this very case it has employed, for example, GPS monitoring. These alternative tools of supervision obviate the need to transport a detainee to a new facility, eliminate even the speculative costs posited by the government, and assuage any fears that a detainee might become infected in another facility. The established costs of the Alternative to Detention Program, averaging $10.55 per day, are far less than the average $158 daily cost of detention itself, much less the speculative $85,000 for a charter flight.5 These tools would be particularly useful if other facilities, subject to similar litigation, are unable to accept new arrivals. The refusal of Defendant to consider release or alternatives to detention has underpinned many of their unlawful actions in this case. See Savino II, 2020 WL 2404923 at *9 (stating, regarding the government’s consideration of releases, “Where elasticity is vital, they are rigid; where life hangs upon a carefully drawn line, they opt for near-blanket incarceration.”). Defendant now seeks to use that same failure to consider alternatives as evidence that this Court’s orders are unworkable. The barriers pointed to by Defendant are almost entirely products of their own design, and thus, easily remedied; certainly, no modification of the Court’s order is warranted.
4 See, e.g., https://www.ice.gov/doclib/coronavirus/attk.pdf. 5 See GAO, Alternatives to Detention (Nov. 2014), available at https://www.gao.gov/assets/670/666911.pdf, at 18.
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II. Defendant’s Excuses For Not Complying With The Staff Testing Component Of The Preliminary Injunction Are Speculative, Premature, And Overblown.
The portion of the Court’s preliminary injunction as to staff testing requires that “[a]s soon as reasonably possible, all immigration detainees at Bristol County House of Correction and staff who come into contact with them must be tested for COVID-19.” Savino II, 2020 WL 2404923 at *11. The injunction states that any staff may decline to be tested; if so, “a declination shall be treated as a positive COVID-19 result and that person shall be presumed to carry the COVID-19 virus.” Id. The injunction specifies the type of test to be used (an FDAapproved PCR test) and that testing must be provided at no cost to staff. Id.
Because the operational concerns that Defendant raises are speculative, premature to the extent they are relevant at all, and not mandated by the Court’s order, Defendant has not met their heavy burden of showing “exceptional circumstances” or other conditions justifying extraordinary relief under Rule 60(b). Lepore, 792 F.2d at 274.
A. Defendant’s Argument Defendant apparently seeks to eliminate the staff testing order in its entirety, on the basis of two primary arguments: that staff testing would cost money and that it would be difficult to implement. As to cost, Defendant estimates that at least 613 staff at BCHOC come into contact with immigration detainees at BCHOC. Greenbaum Dec. ¶ 6. Mr. Greenbaum states that ICE estimates each test would cost $55.00, amounting to approximately $33,715 to test all staff covered by the Court’s order. Id.6 The Director of Medical Services for the Bristol County
6 The total dollar figure that Mr. Greenbaum puts in his declaration ($37,000) includes testing for the 80 detainees. The number cited above is calculated just for staff (613 x $55.00).
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Sheriff’s Office, Judy Borges, provides a different cost estimate of $200/test, for a total cost for staff testing of $120,000. Declaration of Judy Borges (“Borges Dec.”) ¶ 6.7
As to practical questions raised by the requirement of staff testing, Mr. Greenbaum posits that “many staff members may refuse testing.” Greenbaum Dec. ¶ 6. Superintendent Souza similarly declares that “many correctional officers and staff members have said that they will not agree to be tested because they consider the testing procedure to be extremely invasive and uncomfortable….” Fourth Declaration of Steven Souza (“Souza Dec.”) ¶ 4. Superintendent Souza outlines a number of issues that he surmises will arise if staff members refuse testing: that “they will be required by CDC and BCHOC guidelines to not work for 14 days,” which in turn would mean that “BCHOC cannot be adequately staffed.” Id. at ¶¶ 5, 9. For those staff who agree to be tested, Superintendent Souza states that they “will have to remain out of work” while results are pending, which he states “typically take up to 3 days.” Id. ¶ 6. Finally, Superintendent Souza states that testing takes 10-15 minutes for each person tested, for a total of up to 175 hours, and that “it could easily take a month to get everyone tested.” Id. at ¶ 11.8
Similarly, Ms. Borges states that what she characterizes as “[m]andatory testing” of BCHOC staff “raises a number of difficult personnel issues….” Borges Dec ¶ 4. Ms. Borges states some of her concerns in general terms (e.g., “what rights” do employees have); others are similar to those raised by Superintendent Souza (e.g., whether staff who refuse testing will be required to stay at home). Ms. Borges also asks whether there is a plan for retesting “in light of the fact that staff goes home every day.” Id.
7 Defendant does not explain the difference between the two costs estimates. Ms. Borges states that she is “aware of a bid” for testing of staff and appears to base her estimate on that. Id. at ¶ 3. No further details about the bid are provided, such as whether Defendant received other bids. Neither the bid request nor the bid itself has been provided. 8 This time estimate includes the time to test detainees as well. Subtracting the time estimate for 80 detainees would presumably reduce this estimate by approximately 20 hours (80 detainees x 15 min.).
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B. Plaintiffs’ Response As the Court has correctly found, “[w]ithout robust testing and contact tracing, the spread of the virus cannot be known and contained.” Savino II, 2020 WL 2404823 at *10. None of the issues raised by Defendant regarding staff testing come close to the circumstances justifying extraordinary relief under Rule 60(b). To the contrary, Defendant’s concerns are run-of-the-mill bureaucratic issues of the type that arise with any change. Notably, Defendant raises their concerns with the Court without having even attempted compliance. Defendant’s cost argument may be easily disposed of. ICE has an annual budget of approximately $8 billion.9 Coming up with $33,715 – or even the higher estimate of $120,000 – for BCHOC staff testing cannot conceivably be deemed to be an exceptional circumstance that would justify extraordinary relief. Moreover, that testing would entail a cost to ICE was known when the preliminary injunction was issued and was specifically addressed in the Court’s order. See Agostini, supra, 521 U.S. at 216 (costs that are known at the outset “do[] not constitute a change in factual conditions warranting relief under Rule 60(b)(5).”) Defendant’s cost estimate – exceedingly minimal when compared to ICE’s overall budget and in light of the significant public health implications – does not warrant modifying the preliminary injunction. Defendant’s remaining concerns are also insufficient to justify a modification of the Court’s preliminary injunction. It has now been almost a month since the Court announced its ruling, which required staff testing “[a]s soon as reasonably possible,” and yet Defendant has apparently not even offered any such testing to staff. Defendant’s May 29, 2020 report to the Court on the status of staff and detainee testing states boldly that “No testing of staff has been undertaken to date explicitly in response to the Court’s order.” Defendants’ Corrected Report
9 See UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Who We Are, available at https://www.ice.gov/about.
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Regarding Testing, ECF 192, at 2.10 While 137 staff have reportedly been tested, approximately half of these tests appear to have pre-dated the Court’s order, and Defendants explicitly state that all of the tests were “voluntarily undertaken by the staff members on their own and not in response to the Court’s order.” Id.11
Moreover, Defendant provides no evidence to support their speculation that “many staff members may refuse testing.” See supra. Instead, their assertions appear to be based primarily on employee chatter immediately following the Court’s ruling. Def. Brf. at 35 (“Within hours of the Court’s preliminary injunction decision, the portion of the order requiring staff testing was widely discussed among staff.”). Particularly in light of the high burden placed on Defendant to justify modifying an injunction, the lack of any factual record to support such a departure is striking. Where relief is sought under Rule 60(b), “something far more specific and telling is required than general speculation.” Roger Edwards LLC, supra, 427 F.3d at 136. This is not a case where Defendant has attempted compliance with the Court’s order, run up against widespread resistance, and then returned to the Court for guidance. Rather, Defendant has simply chosen not to even try.12
Notably, Superintendent Souza’s declaration, dated May 12, 2020, also sets forth a parade of horribles for detainee testing, including all of the costs and time and administrative headaches that he hypothesized would be associated with that testing. See Souza Dec. ¶ 11. Yet
10 Oddly enough, elsewhere in their brief, Defendant takes the Court to task for having previously found that “[t]he government has resisted widespread testing.” See Def. Brf. at 22 (citing Savino II, 2020 WL 2404923 at *7). Defendant claims that because the Court had not urged Defendant to conduct widespread testing before entry of the preliminary injunction, “there is no evidentiary basis for the claimed resistance.” Id. Yet one page later – now in the face of a Court order – Defendant actively resists such testing. 11 It is unclear whether the number of staff tests is 137 or 132. Defendant’s report to the Court starts by stating that “137 staff members have been tested,” but then goes on to state that “[o]ut of 132 staff that have been tested, 32 tests were positive for the coronavirus.” ECF 192. 12 Defendant’s stance thus has a somewhat familiar ring to it. See Savino, supra, 2020 WL 2404923 at *1 (“The government refuses to play ball.”).
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shortly after the date of Superintendent Souza’s declaration, Defendant apparently decided to go ahead and comply with this part of the Court’s order. Ten days later, Ms. Borges signed her declaration, stating that “all immigration detainees at BCHOC have been tested except for seven that refused testing ….” Borges Dec. ¶ 2. Ms. Borges reports no problems associated with detainee testing, from either a cost or an operational perspective. Where there’s a will, there’s a way.13
Moreover, the operational issues with staff testing – even if they actually came to pass – would not present insurmountable hurdles, and are decidedly not the type of extraordinary circumstances that would justify a change to the preliminary injunction. If some staff refuse to be tested, Defendant can make their own operational decisions about how to proceed. The presumption that the Court has established – that any staff who refuse to be tested will be presumed by the Court to carry the virus – is plainly an adjudicative tool and not a personnel rule. There is nothing about this presumption that abrogates any employee rights or instructs BCHOC to follow certain personnel procedures with respect to those individuals. Rather, it is simply a means for this Court to appropriately assess the factual circumstances at issue in the case as it continues to evaluate Defendant’s response to the safety of those detained at BCHOC.
Certainly, the Court has made clear that no staff are to be tested against their will, so Defendant’s vague question of “what rights do employees have?” is a non-issue. Nor does the
13 Moreover, it now appears that most, if not all, of the 7 class members referenced by Ms. Borges will be tested as well. When provided with the spreadsheet showing that certain class members had refused testing, Plaintiffs’ counsel contacted these individuals to ensure that their refusals were knowing and voluntary and not based on misinformation. For example, several class members had reported that they were told by Correctional Officers that simply agreeing to a test – whether or not they were symptomatic and/or tested positive – would mean that they would be put into isolation for 14 days. Defendant’s counsel has since confirmed to Plaintiffs’ counsel that this is not Defendant’s testing protocol, and Plaintiffs’ counsel have communicated this information to class members. Another monolingual Spanish speaking class member has a nasal septum injury and was unable to inquire about the safety of a nasal swab test to the non-Spanish speaking BCSO staff offering testing. The parties are in contact to resolve these and other similar testing issues. The ultimate number of class members refusing testing is likely to be substantially less than seven.
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Court’s order dictate that Defendant must act one way or the other as to any non-tested staff. Notwithstanding Mr. Borges’ reference to “mandatory testing,” the Court’s order is simply to offer testing. See Savino II, 2020 WL 2404923 at *10 (“The hardship to the government here, such as it is, boils down to providing tests.”) Moreover, the Court has shown itself to be more than available to Defendant and Plaintiffs alike throughout this litigation. Were any actual, nonhypothetical, issues to arise once testing was underway, Defendant could return to the Court at that point.14
In short, nothing in the record supports Defendant’s request to eliminate the staff testing requirement from the Court’s preliminary injunction.
III. Defendant’s Portrayal Of Alleged Violations Of Bail Conditions Is Selective And Inaccurate, And Does Not Justify Any Changes To The Preliminary Injunction.
In their Motion, Defendant alleges for the first time in this litigation, having never before raised it to Plaintiffs’ counsel, that certain detainees released on bail are purportedly violating their bail conditions. As explained below, Defendant’s filing presents a highly selective and inaccurate picture of what is actually happening on the ground. To be clear: Plaintiffs and their counsel take the Court’s orders with the utmost seriousness, and counsel have taken prompt and ongoing action to convey the Court’s orders to class members. The more complete factual picture set forth below is not intended to indicate otherwise. Rather, it is set forth solely to counter Defendant’s claim that “detainees are essentially thumbing their noses at the Court….” Def. Brf. at 37. This is emphatically not what is occurring.
14 Again, the comparison to detainee testing is instructive. Once Defendant decided to implement this portion of the order, few issues actually arose; those that did arise were dealt with quickly and easily; and in the end nearly universal testing has been achieved. See note 13, supra.
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A. Defendant’s Argument In support of their allegations, Defendant submits the declaration of Immaculata GuarnaArmstrong, Assistant Field Office Director for ICE. Ms. Guarna-Armstrong states that “[f]or each alien released by Judge Young, ICE provided such alien with an Order of Recognizance or an Order of Supervision setting forth the terms and conditions of such release, to include the Court ordered terms and conditions.” Declaration of Immaculata Guarna-Armstrong (“GuarnaArmstrong Dec.”) ¶ 8. Ms. Guarna-Armstrong states that these Orders “included Judge Young’s standard bail order” that mandated compliance with ICE conditions, as well as 14-day quarantine and house arrest thereafter. Id. ¶ 9.15 Ms. Guarna-Armstrong then lists nine detainees who she states have violated bail conditions, by leaving their residence either during quarantine or the house arrest. The number of alleged violations varies: one detainee is alleged to have violated the conditions seven times; another is alleged to have violated the conditions 105 times during the 14-day quarantine period and “between four and nineteen violations each day” during the following two weeks. Id. ¶ 18. Ms. Guarna-Armstrong provides no further detail about any contact that ICE may have had with these detainees during these periods, nor about how, if at all, ICE investigated the alleged violations. B. Plaintiffs’ Response ICE has not provided each releasee with an Order “setting forth the terms and conditions of such release, to include the Court ordered terms and conditions.” Id. ¶ 8. Rather, the release papers given to class members have been haphazard and inconsistent. Some contain the Court’s
15 Ms. Guarna-Armstrong does not state how she comes by her asserted knowledge of detainees’ release orders. She does not, for example, state that she reviewed the release orders to prepare her declaration, nor does she attach them to her declaration. Ms. Guarna-Armstrong also states that “ICE ERO Boston officers explained the contents of the [Orders] to the aliens ordered released by Judge Young prior to release.” Id. ¶ 10. Again, she does not explain how she comes by this knowledge.
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conditions; others do not; still others contain some but not all of the Court’s conditions. See Sellstrom Dec. ¶ 7.16 For example, some detainees’ release paperwork lists the Court’s 14-day quarantine as a bail condition but omits the subsequent house arrest condition. Id., Ex. A. Other detainees’ release papers are internally inconsistent, for example telling the individual they are on house arrest but also stating a condition that “[y]ou do not travel outside New York for more than 48 hours without first having notified this agency office of the dates and places, and obtaining approval from this agency office of such proposed travel.” Id., Ex. B; see also id., Ex. C (same, with condition not to “travel outside Maine for more than 48 hours” without obtaining ICE approval).
Verbal instructions have also varied widely. ICE contracts out its Alternatives to Detention programs to a private company called BI, Inc., which in turn operates the Intensive Supervision Appearance Program (“ISAP”). ISAP staff are often the primary point-of-contact for released individuals.17 Unfortunately, ISAP staff’s verbal instructions to class members have often been at variance with the Court’s conditions. For example, ISAP staff have told numerous detainees that they can leave the house, as long as they are home on designated days of the week for phone check-ins. See Sellstrom Dec. ¶ 8 (detainee told by ISAP to be available to check in on Thursdays but that he is otherwise free to leave to house because he is being monitored electronically); id. (detainee told by ISAP to be home Wednesdays between 8:00 am- 4:00 pm); id. (detainee told by ISAP he could leave house so long as he was home on Tuesdays and Fridays). ISAP staff have told other class members that they can travel, as long as travel is not
16 For just this reason, early on in this litigation, Plaintiffs’ counsel asked Defendant to provide them with copies of release paperwork for each class member. See id. ¶¶ 3-6. Defendant refused, stating that counsel should just get the paperwork directly from class members. Plaintiffs accordingly have attempted to do so, and have gathered some of this documentation. Particularly given that Defendant has now put the release paperwork at issue with their Motion, Plaintiffs renew their request to be provided with the complete set of release papers for all released class members. 17 Class members do not typically distinguish between what entities are giving them instructions, and do not necessarily distinguish ISAP from ICE.
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outside the Northeast. Id. ¶ 9. ISAP staff told yet another person that she would be considered compliant with release conditions as long as “she stayed in Brooklyn.” Id. Some released class members were contacted by ISAP following the 14-day quarantine period, to let them know that the quarantine period was over and that they could now leave the house. Id. No class members have reported to Plaintiffs’ counsel that they have been informed or warned by ICE or ISAP that they were in violation of their bail conditions. Id. ¶ 12.18
Plaintiffs have no evidence that ISAP staff intentionally misled class members. Whether the errors originated with ISAP staff laboring in the time of pandemic, or in the failure of ICE to inform its own contractors of this Court’s bail conditions, the detainees have been extremely diligent in trying to do what is required of them – recognizing that their safety and freedom is at stake. For example, several released class members have repeatedly sought to confirm with ISAP and ICE exactly what they must do to comply with their release conditions, and to fix GPS malfunctions. Id. ¶ 10. Class members who attempted to contact their assigned ICE officers regarding the conditions of their release did not receive calls back. Id. Plaintiffs’ counsel, for their part, have consistently informed class members of the Court’s conditions: both on release and throughout the last week since receiving Defendants’ motion.
Plaintiffs’ counsel will continue to emphasize the importance of complying with the Court’s conditions, and to try to explain the confusing and conflicting messages that class members have been receiving in their ICE paperwork and from ISAP. However, to the extent that Defendant is trying to use class members’ alleged non-compliance against them, Defendant
18 The fact that ISAP was giving this advice to class members is consistent with, and explains to some degree, the gaps in the Guarna-Armstrong Declaration, such as why ICE would allow someone to violate conditions of detention 214 times without ever speaking to them about it. See note 15, supra. Should the Court desire more specific information about any particular class member(s), Plaintiffs will provide it in whatever form would be helpful for the Court.
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and their agents should also be required to give accurate and consistent information to class members. In any event, the sparse factual record provided by Defendant to the Court on this motion does not justify any modifications to the preliminary injunction.
IV. The Court’s Orders Are Protecting the Rights of Class Members And Preventing Harm To Them, BCHOC Staff, And The General Public.
In light of the Court’s order construing Defendant’s Motion as a motion to modify the preliminary injunction and asking Plaintiffs to respond on a shortened timeline, Plaintiffs do not here respond to the various other points raised in Defendant’s Motion. Should the Court wish Plaintiffs to respond to any of the other points raised in Defendant’s Motion, Plaintiffs stand ready to do so.
For now, it suffices to say that Plaintiffs do not agree with virtually anything in Defendant’s motion, which is a stunning exercise in revisionist history. In particular, Plaintiffs vigorously disagree with Defendant’s underlying premise: that all was well at BCHOC back in March 2020 when the population density was 148 – and that should never have changed. The evidence put forth by Plaintiffs disproves that premise, and the Court has rightly recognized that the failure of Defendant to act likely constitutes deliberate indifference.
It is quite clear that the Court’s early and decisive action in ordering class member releases has prevented significant harm. As a recent comprehensive review of the early response to the COVID-19 pandemic in Massachusetts found:
Even hours mattered in those critical days. The math was well known and simple: The faster governments act after learning of community transmission, the better their chance of slowing the disease before it spins out of control, the smaller the number who will die. BOSTON GLOBE, The inside story of how coronavirus spread in Massachusetts (May 31, 2020), available at https://apps.bostonglobe.com/metro/graphics/2020/05/coronavirus-tale/. The
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Court’s orders in the early days of the pandemic indisputably slowed the spread of the disease by lowering the detainee population. One need look no further than Bristol County’s criminal population for confirmation of this point. In that part of the facility – still at or near its March 2020 density – there has been an extraordinary and alarming rise in positive cases in the inmate population. By contrast, in Bristol County’s immigration detention – where this Court has taken the effort and care to individually analyze how the population density can be decreased – there has been only one positive test. That difference is striking, and the class, the BCHOC staff, and the public at large have the Court to thank for that.
The pandemic is far from over, however, and the threat to class members remains very real. Savino II, 2020 WL 2404923 at *7 (“The virus is present in BCHOC and is hardly going to stop in its tracks.”). As Defendants’ filing makes clear, the risk of future infection to class members remains high. In particular, what individual class members have identified as the “revolving door” and “steady stream” of BCHOC staff coming in and out of the facility represents a serious and obvious danger – one that Defendant, who refuses to test staff, continues to willfully disregard . Defendant states in their recent filing that there are 613 BCHOC staff who come into contact with class members. See Greenbaum Dec. ¶ 6; Souza Dec. ¶ 11; Borges Dec. ¶ 3. Given CDC guidance for individuals to minimize the number of people they come into contact with, the 613 number is staggering.19 As Defendants correctly state: “Particularly with the staff, who go home everyday, there are additional opportunities for exposure.” Def. Brf. at 23; see also Greenbaum Dec. ¶ 8 (noting that there is no assurance that staff who test negative
19 It also reinforces the correctness of the Court’s ruling that Defendant’s assertions that BCHOC is a safe environment “flies in the face of the CDC’s direct warnings that detention centers are hardly impregnable fortresses and that, in fact, they are more susceptible to outbreaks once the virus penetrates. Interim Guidance 2 (“There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress ....”)….” Savino II, 2020 WL 2404923 at *9.
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“will remain negative” and that a staff member could be “tested on one day and go[] to the grocery store and contract[] COVID-19 there”); see also Borges Dec.¶ 4 (noting that “staff goes home every day”). This problem is all the more alarming given that approximately one-quarter of staff who have been tested have tested positive for the virus. See ECF 192 at 2.
Meanwhile, as this Court has recognized, many class members who are still detained have no reason to be there, as they can be adequately monitored in the safety of their own homes. Among those who are still detained, many are still sleeping in congregate 11-foot wide cells with 3-4 other individuals in the 2 East Unit. Medically vulnerable class members are still being held in a facility that is deliberately indifferent to their needs and risk of infection. And since the time of their initial bail applications to this Court, several detainees have prevailed in their immigration cases – yet the government still holds them in dangerous conditions while it contemplates whether to appeal those rulings.20 In the days ahead, now with negative test results for nearly all the class members who remain incarcerated at Bristol, Plaintiffs urge the Court to resume adjudicating pending bail applications.
CONCLUSION For the foregoing reasons, Defendant’s Motion should be denied in its entirety. June 2, 2020 Respectfully Submitted, /s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal†
20 Darwin Bonilla Garcia and Keith Williams both fall into this category. Both were fully briefed on April 20, 2020, and their bail applications are under advisement with this Court. See ECF 100, Ex. 3 (Bonilla Garcia); Ex. 8 (Williams). Both have also tested negative for COVID-19. ECF 192. To the extent it would be helpful for the Court to have updated information on any other individual class members, or to have information on pending bail applications grouped in some manner (e.g., by housing unit or by medical condition), Plaintiffs stand ready to do so.
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Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0606 onimni@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Aseem Mehta, Law Graduate* Alden Pinkham, Law Graduate* Daniel Phillips, Law Graduate* Fernando Quiroz, Law Student Intern* Bianca Rey, Law Student Intern* Megan Yan, Law Graduate* Reena Parikh† Muneer Ahmad† Michael Wishnie (BBO# 568654)
Jerome N. Frank Legal Svcs. Org. P.O. Box 209090

New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Lisa Pirozzolo John Butts Vinita Ferrera Felicia Ellsworth Nicole M.F. Dooley Annaleigh Curtis Michael Brown Rama Attreya Gary Howell-Walton
Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 021009 Lisa.Pirozzolo@wilmerhale.com

† Admitted pro hac vice.

* Motion for law student appearances pending.
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Case 1:20-cv-10617-WGY Document 196 Filed 06/02/20 Page 25 of 25 CERTIFICATE OF SERVICE
I hereby certify that, on June 2, 2020 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system. Date: June 2, 2020 __/s/ Oren Sellstrom_______________ Oren Sellstrom (BBO #569045)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

DECLARATION OF OREN SELLSTROM IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION
I, Oren Sellstrom, declare: 1. I am one of the attorneys for Plaintiffs in this action. The Plaintiffs’ legal team also consists of attorneys and law student interns from the Jerome Frank Legal Services Office at Yale Law School and attorneys from the law firm of WilmerHale. 2. It has been the practice of Plaintiffs’ legal team, since the Court first began releasing class members on bail, to reach out to class members as soon as possible following any order of release on bail. Our purpose in doing so has been to inform the class members of their release, to explain and discuss the Court’s conditions of bail, and to make sure that released class members understand that ICE may have additional conditions of bail that it imposes.

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3. Because of the importance of ensuring that released class members comply with all conditions of release, Plaintiffs’ counsel have asked Defendants’ counsel on multiple occasions to provide us with the release paperwork given to any class member released pursuant to the Court’s bail orders. However, Defendants’ counsel has consistently refused to do so. We first made this request in a phone call with Attorney Kanwit on April 9, 2020. We followed up with an e-mail reiterating the request on April 10, 2020.
4. When we did not receive a response to our April 10, 2020 email, we followed up again by email on April 13, 2020, stating that “It is in everyone's interest to make sure that we are all on the same page about release procedures, and that ICE is following consistent procedures and giving class members complete and accurate information.” We went on to recap the prior conversation that we had: “In that conversation, we discussed the importance of making sure that ICE includes the Court's conditions in the release paperwork that ICE provides to released class members. We have seen at least some paperwork that indicates this has happened for some class members, but it is not clear to us that this has been ICE's consistent practice. Please confirm at your earliest convenience.” Attorney Kanwit did not respond to this email.
5. We subsequently raised the issue at the April 24, 2020 hearing before the Court. Although the Court initially stated that it expected Defendant to produce release paperwork, Defendant’s counsel took the position that class members should provide the paperwork to Plaintiffs’ counsel themselves, and the Court ultimately did not order Defendant to produce it.
6. Accordingly, Plaintiffs’ counsel have attempted to obtain the release paperwork from class members themselves. This has sometimes been difficult, as class members do not
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often have access to scanners, copiers, and computers; these difficulties have been compounded during the pandemic and because released class members cannot leave their homes. For class members who have been able to do so, the most feasible method has often been for them to take page-by-page photographs of their release paperwork with their cell phone and then email those pages to Plaintiffs’ counsel as a series of attachments. 7. Based upon our review of class member release documents we have received, the release papers that ICE has provided to class members have been haphazard and inconsistent. Some release papers contain the Court’s conditions; others do not; still others contain only some of the Court’s conditions but omit other conditions. Exhibit A to this declaration is a true and correct copy of an example of release paperwork only partially stating the Court’s conditions; it lists the Court’s 14-day quarantine as a bail condition but omits the subsequent house arrest condition. Other detainees’ release papers are internally inconsistent, for example telling the individual they are on house arrest but also stating a condition that “[y]ou do not travel outside New York for more than 48 hours without first having notified this agency office of the dates and places, and obtaining approval from this agency office of such proposed travel.” Exhibit B is a true and correct copy of an example of this; Exhibits C is a true and correct copy of another example of this. 8. It is Plaintiffs’ counsel’s understanding that verbal instructions given to class members by ICE and ICE agents also varies widely. ICE contracts out its Alternatives to Detention programs to BI, Incorporated, also known as the Intensive Supervision Appearance Program, or ISAP. ISAP staff are often the primary point-of-contact for released
3

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 Page 4 of 34
individuals, who do not typically distinguish between what entities are giving them instructions, and do not necessarily distinguish ISAP from ICE. ISAP staff’s verbal instructions to class members, as reported to Plaintiffs’ counsel, have often been at variance with the Court’s conditions. For example, numerous detainees have been told by ISAP staff that they can leave their house, as long as they are home on designated days of the week for phone check-ins. One released class member was told to be available to check in on Thursdays but that he is otherwise free to leave to house because he is being monitored electronically. Another has reported being told to be home Wednesdays between 8:00 am-4:00 pm. 9. Other class members have reported being told that they can travel, as long as travel is not outside the Northeast. Another released class member reported being told she would be considered compliant with release conditions as long as “she stayed in Brooklyn.” Some released class members were contacted by ISAP following the 14-day quarantine period, to let them know that the quarantine period was over and that they could now leave the house. 10. Class members have been diligent in trying to do what is required of them – recognizing that their safety and freedom is at stake. For example, a number of released class members report that they have repeatedly sought to confirm with ISAP exactly what they are supposed to do to comply with their release conditions, asking to speak with supervisors to ensure they are conforming their conduct and repeatedly inquiring about what is and is not allowed. At least four class member’s GPS tracking systems have malfunctioned, and they have made efforts to work with ICE to fix them. Class members
4

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 Page 5 of 34
report that reaching ISAP or ICE staff to report problems, ask questions, or confirm instructions is difficult, and that messages left are frequently not returned. 11. Plaintiffs’ counsel for their part have reiterated the Court’s conditions to released class members on multiple occasions, beginning upon release and continuing over the last week since receiving Defendant’s Motion for Reconsideration. Whenever Plaintiffs’ counsel become aware of release paperwork that is inconsistent or inaccurate, it is our practice to reiterate the Court’s conditions to class members. Similarly, whenever Plaintiffs’ counsel become aware of statements by ISAP that are inconsistent with the Court’s orders, it is our practice to reiterate the Court’s conditions to class members and reiterate the importance of following the Court’s conditions no matter what ICE’s agent tells them. 12. Plaintiffs’ counsel are not aware of any instances when ICE or ISAP have warned or informed any class members that they were in violation of their bail conditions. 13. Attached hereto as Exhibit D is a true and correct copy of excerpts of the June 1, 2020 Special Master’s Weekly Report in Committee for Public Counsel Services (CPCS) v. Chief Justice of the Trial Court, SJC-12926, indicating COVID-19 tests and confirmed cases for the Bristol County House of Correction and Jail. I declare under the penalty of perjury that the foregoing is true and correct and was executed this 2nd day of June 2020. /s/ Oren Sellstrom______ Oren Sellstrom
5

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 Page 6 of 34 CERTIFICATE OF SERVICE
I hereby certify that, on June 2, 2020 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system. Date: June 2, 2020 __/s/ Oren Sellstrom_______________ Oren Sellstrom (BBO #569045)
6

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 Page 7 of 34
EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 Page 31 of 34

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

SUFFOLK, ss.

SJC-12926

COMMITTEE FOR PUBLIC COUNSEL SERVICES AND MASSACHUSETTS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Petitioners,
v.
CHIEF JUSTICE OF THE TRIAL COURT, ET AL., Respondents
SPECIAL MASTER’S WEEKLY REPORT
Pursuant to the Supreme Judicial Court’s April 3, 2020 Opinion and Order in this matter, as amended on April 10 and April 28, 2020 (the “Order”), the attached Appendix contains the Special Master’s weekly report for the period ending May 31, 2020.
The Appendix contains charts reflecting the following information for each of the correctional facilities administered by the Department of Correction and each of the county Sheriffs’ offices: (i) overall inmate population; (ii) the number of COVID-19 tests administered by the correctional facilities for all inmates, correctional officers, or other staff members, including contractors; (iii) the number of confirmed positive COVID-19 cases for all inmates, correctional officers, or other staff members, including contractors; and (iv) the number of inmates released pursuant to the procedures or guidance set forth in the Order since April 3, 2020. Figures presented in red in the attached Appendix reflect certain changes, corrections, and amendments made from the daily reporting received by the Special Master and the Special Master’s prior weekly report as a result of communications with the parties to this matter. As of June 1, 1,586 inmates have been released from state and county correctional facilities.

Dated: June 1, 2020

/s/ Brien T. O’Connor Special Master Brien T. O’Connor, Ropes & Gray LLP

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 Page 32 of 34
Appendix

6/1/2020

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20 SJC‐12926
COMMITTEE FOR PUBLIC COUNSEL SERVICES AND MASSACHUSETTS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Petitioners, v.
CHIEF JUSTICE OF THE TRIAL COURT, ET AL., Respondents

Page 33 of 34

Weekly Report for County Jails

Incarceration and Release Stats

Reporting Date

Total Inmate Population
(Sunday Figures)

5‐Apr to 12‐Apr
13‐Apr to 19‐Apr
20‐Apr to 26‐Apr
27‐Apr to 3‐May
4‐May to 10‐May
11‐May to 17‐May
18‐May to 25‐May 26‐May 27‐May 28‐May 29‐May 30‐May 31‐May Totals

6,863
6,168
6,119
5,997
5,925
5,793
5,745 5,734 5,779 5,747 5,737 5,730 5,730

Inmates Released Since SJC
Order
206
270
121
82
83
49
59 8 11 19 15 3 1 927

Aggregate of County Jail Reporting

Number of COVID‐19 Tests Administered by Correctional
Facilities

Number of Confirmed COVID‐19 Cases

Inmates

Correctional Officers*

Other Staff*

Inmates

Correctional Officers

Other Staff

103

144

43

39

43

13

150

61

20

65

21

8

57

30

8

13

17

2

80

38

14

14

7

7

56

24

9

11

2

1

96

21

7

10

5

6

132

54

16

39

13

2

4

3

0

1

1

0

52

4

0

2

2

0

43

3

3

8

0

0

79

8

2

3

4

0

352

2

2

7

1

0

5

1

0

0

3

0

1,209

393

124

212

119

39

*Because correctional officers and staff generally receive testing and treatment from their personal physicians or some other outside healthcare provider, the confirmed positive cases consist of those correctional officers or staff that have reported that information to the county jails.

1

6/1/2020

Case 1:20-cv-10617-WGY Document 196-1 Filed 06/02/20
SJC‐12926
COMMITTEE FOR PUBLIC COUNSEL SERVICES AND MASSACHUSETTS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Petitioners, v.
CHIEF JUSTICE OF THE TRIAL COURT, ET AL., Respondents

Page 34 of 34

Weekly Report for County Jails

Bristol County

All Facilities

Bristol County House of Correction and Jail*

Ash Street Jail and Regional Lockup

Incarceration and Release Stats

Number of COVID‐19 Tests Administered by Correctional
Facility/Facilities

Number of Confirmed COVID‐19 Cases

Reporting Date

Total Inmate Population
(Sunday Figures)

Inmates Released Since
SJC Order

Inmates

Correctional Officers

Other Staff

Inmates

Correctional Officers

Other Staff

5‐Apr to 12‐Apr

656

10

5

0

4

0

2

1

13‐Apr to 19‐Apr

601

13

1

0

0

0

1

1

20‐Apr to 26‐Apr

581

9

8

0

0

0

4

0

27‐Apr to 3‐May

567

5

5

0

0

1

1

0

4‐May to 10‐May

633

1

28

0

0

7

0

0

11‐May to 17‐May

617

2

54

0

0

7

2

4

18‐May to 25‐May

610

3

13

1

0

17

10

1

26‐May 610

0

0

0

0

0

0

0

27‐May 618

1

3

0

0

1

1

0

28‐May 620

1

0

0

0

0

0

0

29‐May 620

3

3

0

0

1

4

0

30‐May 623

0

0

0

0

4

0

0

31‐May 623

0

2

0

0

0

2

0

Totals

48

122

1

4

38

27

7

Number of COVID‐19 Tests Administered by Correctional
Facility/Facilities

Number of Confirmed COVID‐19 Cases

Inmates

Correctional Officers

Other Staff

Inmates

Correctional Officers

Other Staff

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

n/a

0

0

0

0

0

0

4

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

4

0

0

0

1

1

*Bristol County began breaking apart testing data by facility on May 9. Prior to this time, all available testing data is shown under the main facility column.

4

 
 Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 1 of 12

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM REGARDING THE APPROPRIATE LEVEL OF DETAINEE POPULATION A. General Concerns Regarding Setting a “Safe” Limit of Detainees The Court has again invited the parties to suggest what is a safe level of detainee population at the Bristol County House of Corrections (“BCHOC”). Two months ago it first asked for input regarding the appropriate level of detainee population. See Docket # 55. In response to the Court’s inquiry regarding whether there was a level of population reduction which would render the conditions relatively safe for the remaining detainees, Defendants submitted two declarations on Thursday, April 9, 2020. One was from Superintendent Steven Souza of BCHOC. See Docket Entry Nos. 67 & 69. That declaration went through the areas where detainees are held at BCHOC in painstaking detail, providing both dimensions and the current number of detainees housed in each. The second declaration was from Nelly Floriano, the Nursing Supervisor for ICE detainees at BCHOC, who reviewed the prevention and treatment practices at the facility and offered an opinion regarding the ability of ICE detainees to maintain social distance. See also Docket Entry No. 83 and exhibits thereto. Defendants also

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 2 of 12
submitted videos which showed the detention facilities at BCHOC. See email communication to Jennifer Gaudet, Courtroom Clerk, April 9, 2020 with links to two videos.
Defendants followed up the declarations with a brief on Tuesday, April 14, 2020. The brief addressed the (then-) current detainee population at BCHOC within each unit where immigration detainees are held. Attached to the brief were an updated declaration of Superintendent Souza and drawings of the current and social distancing-optimized layouts in the dormitories. Together, these submissions made the case that the reduction in population at that point, coupled with steps taken by BCHOC to reconfigure sleeping arrangements, meal taking, and other activities made social distancing much more feasible and compliant with all CDC recommendations (given the inherent limitations of a detention facility, which even the CDC recognizes). The detainee population at BCHOC had been diminished by thirty-eight percent (38%) from the level at the outset of the litigation at the time the Motion to Stay was filed; presently, the detainee population has been reduced by 66% from the original level (from 148 to 66).
In response to Defendants’ filings in early April, the Court entered a minute order on the docket that did not address the issue of population density as to which the Court had invited comment, nor was the issue discussed at the April 9, 2020 hearing or any subsequent hearing. See Dkt. # 86.
In the Preliminary Injunction decision, the Court did not make a finding that conditions at BCHOC did not allow for social distancing. Instead, the Court focused on Defendants’ alleged resistance to the release of detainees, its claimed lack of contact tracing and testing of
2

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asymptomatic individuals.1 In light of this history, and given that the Court has held it against Defendants when they expressed their view that the safety of detainees did not require further reduction of the population (notwithstanding Defendants’ clear acquiescence to more than half the total number of detainees released), Defendants, frankly, proceed with some measure of trepidation.
The current situation is that BCHOC has a virtually-perfect record of no confirmed positives among the detainee population. The extent to which this is due in part to the releases by the Court is anyone’s guess. Given that there was no coronavirus among the detainees at the (below capacity) level of 148, nor at 125, or when the detainee population dropped below 100, it is speculative how much impact any one factor has had on the outcome. BCHOC has taken a number of steps to prevent the introduction of the virus into BCHOC and to limit its spread if it came into the facility. No one knows which steps, or what combination of measures, is responsible for the remarkable limit of COVID-19 among the ICE detainees.
But what we do know, with absolute certainty, is that in the three months of the pandemic, BCHOC has been successful in keeping the virus out of the immigration detainee population. As stated in previously submitted declarations to the Court, in the last ten weeks, there has been a single positive test of a detainee, and that person tested negative two days later.
1 As argued in Defendants’ Motion for Reconsideration, Defendants believe that the Court was incorrect as to the facts underlying this conclusion and that Defendants could be deliberately indifferent in failing to test asymptomatic individuals or to conduct contact tracing when neither the CDC nor the Massachusetts Department of Public Health recommended such steps. Even if the Court were correct regarding Defendants’ opposition to releasing detainees, and it is not correct, that is insufficient to establish conduct which “shocks the conscience,” particularly since Defendants have successfully implemented all recommended procedures and kept COVID-19 out of the detainee population.
3

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 4 of 12
All of his unit mates tested negative, suggesting that the initial positive was very likely a false positive. See Declaration of Judy Borges, submitted with the Motion for Reconsideration, dkt. # 185.
This is not a situation in which there was an outbreak and it was subsequently controlled by population reduction and quarantining. There never was an outbreak. The Court assumed that whatever the number of detainees was at the outset of the litigation, it was too many. The problem with this assumption is that the starting number could have been twice as high. Or it could have been half as much. And the Court would likely have assumed that the starting number was too high wherever it fell on that continuum, from 74 to 296. Put another way, there was no fact or science-driven determination that the initial number of detainees was too many. All the Court had was the general opinion of doctors, who either had never been to BCHOC or not been there recently, to the effect that the virus would likely spread quickly in a congregate setting such as BCHOC. While the danger of an outbreak was (and, to a lesser extent, still is) real, we now know it has not come to pass.2
The lack of a clarity regarding what constitutes a safe detainee population density has dogged this litigation throughout. Plaintiffs have refused to offer what they believe is a safe number or range.3 It should not be for Defendants to pick the number, when Defendants had no
2 None of the expert opinions submitted by Plaintiffs have suggested what a safe level of detainees would be. It is possible that the reduction in detainees achieved by the Court’s bail orders (more than half of which Defendants agreed to) and the voluntary releases or transfers by ICE plus the release on bond by Immigration Judges has prevented an outbreak, no one can say for certain that is the case. All of the other steps taken by Defendants may have kept the virus out of the detainee population such that social distancing was not a factor.
3 Nor have Plaintiffs agreed that a single class member should not be released regardless of how dangerous or likely to flee. Even now, Plaintiffs are blaming Defendants for their lack of compliance with the Court’s bail order.
4

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 5 of 12
reason to think that the starting number was too high.4 Nor, given the absence of evidence that the starting number was dangerous given the capacity of the facility, and in light of all of the other steps taken by BCHOC to comply with all available guidance on the coronavirus, can it be said that Defendants’ view reflects deliberate indifference.
It is difficult to differentiate the degree of danger presented by various ranges of population. We can all agree that the risk of person-to-person transmission is reduced if there are only twenty detainees. But it will not be zero, because it only takes a single infected person having contact with another person for the infection to spread. And that infected person might not be a detainee. So even if there were two detainees left, one could be infected by an asymptomatic guard and then infect the other detainee.
This is unlikely, for many reasons. And, moreover, it must be remembered that release is no panacea. Just as a single infected guard could spread the virus to detainees, so could a released detainee’s wife, brother, cousin, etc. who may not be socially isolated.
It is understandable that the Court has struggled with this issue and not made a determination to date. Given that the Court held it against Defendants when they did not pick a list of 50 detainees to be prioritized for bail review, and then distorted Defendants’ position regarding the daily lists of ten detainees, Defendants are in an impossible situation. It is akin to
4 Time and again, the Court and Defendants have disagreed on this fundamental point. The Court has been incredulous that Defendants did not embrace the concept of population density reduction, notwithstanding that there was no specific evidence that the starting level was unsafe. There was an assumption that something had to be done because the pandemic was, and remains, dangerous. While Defendants, Plaintiffs and the Court agree that the coronavirus presents risks to congregate living situations, surely the question of what to do in response depends in part on the relative crowdedness of a particular facility. If one institution is at half capacity, and another is at full capacity, it does not matter that they both have 148 detainees.
5

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 6 of 12
the Court asking a criminal defendant what the defendant thinks is the appropriate sentence when the defendant is still contesting his guilt. If Defendants suggest that 148 detainees is a safe level, they will earn the Court’s opprobrium. The Court will say Defendants are refusing to “play ball.” Even if Defendants were willing to suggest a number, whatever number they suggest will likely be cut down by the Court. Moreover, if Defendants pick a number or range below 148, Plaintiffs will use that as an admission that the starting level was dangerous. This would potentially prejudice Defendants on appeal.
Plaintiffs will argue that there is no safe level, ignoring the bedrock fact that the detainees have remained safe from the virus to date.5 The coronavirus did not enter or spread the detainee population when there were 148 detainees; it did not enter or spread when there were 100 detainees, which is less than one-third of the capacity for immigration detainees at BCHOC as currently configured. In the end, the Court will have to use its best judgment and pick a number that is likely to be arbitrary.
In determining what a safe level of detainees is, it is worth noting that the CDC guidance for correctional facilities recognizes that social distancing is not easy in the correctional setting: “Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (accessed 5/15/20). It is important to keep in mind, moreover, that social distancing does not mean, as Plaintiffs would have it, that two
5 Plaintiffs are constrained by their desire to achieve class-wide relief, which is likely to be impossible. Although the case has been brought upon a claim that the risk of infection of COVID-19 violates the class members’ Fifth Amendment rights, it has always been about getting all of the detainees released.
6

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 7 of 12
persons cannot ever be within six feet of each other even for a moment. As the CDC guidance on contact tracing cited by the Court states: “Based on our current knowledge, a close contact is someone who was within 6 feet of an infected person for at least 15 minutes starting from 48 hours before illness onset until the time the patient is isolated.” CONTACT TRACING, Part of a Multipronged Approach to Fight the COVID-19 Pandemic available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/principles-contact-tracingbooklet.pdf (last accessed May 15, 2020)(emphasis supplied).
Because of the population reduction effected by transfers, voluntary releases and Courtordered releases, and as a result of steps taken to prevent and limit the virus, adequate social distancing (within the CDC parameters) is now possible in all ICE detainee units. Moreover, because the current detainee population is decidedly below capacity, there is room for some repopulation without significantly increasing the risk.
B. Shared Goals What the parties, the Court and the Defendants are seeking is to minimize the risk of the detainees getting infected with COVID-19.6 There are a number of ways in which that can be done. None of the possible steps is exclusive. There is no single right way to do this and there is no way to achieve absolute protection from the virus. See, e.g., Declaration of Alysse Wurcel, M.D., attached hereto as Exhibit A. Plaintiffs have painted an unrealistic, black and white picture in which the only effective
6 The Defendants and the Court are also trying to ensure that the community into which the detainees are released is not endangered by their presence and that they will not flee. The danger to the community is of particular concern given that the majority of the released detainees have significant criminal records, typically involving violent crime, domestic abuse and/or drug trafficking. As has been previously stated, they were detained by ICE for good reasons and in good faith. And, as the Court is aware, some of the released detainees have violated their bail.
7

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 8 of 12
means of protection is the release of all detainees. This is flawed in both logic and pragmatics. First, there is no guarantee that the detainees won’t encounter COVID-19 upon release. The Court, detainees’ counsel and the government have very little means of knowing, much less controlling, the extent to which the detainees and their families practice appropriate precautions against the virus. While the Court has ordered house arrest, the Court neither has authority over, nor insight into, the behavior of those around the detainees. And not all detainees are complying with their conditions. Thus, the risk of the detainees contracting COVID-19 upon release is far from zero.
Conversely, the risk of detainees contracting COVID-19 if they remain at BCHOC is far from 100%. This is underscored by the fact that this litigation is now entering its eleventh week and there are still no cases of COVID-19 in the detainee population. In light of the daily increases in the number of confirmed cases in the Commonwealth of Massachusetts over that time, it is clear that the steps taken at BCHOC have been effective.
The detainees have all been quarantined together for months, and so the possibility of any one of them being infected is extremely low. This has been confirmed by the recent round of testing, in which not a single detainee tested positive. Therefore, social distancing is much less of an issue because the virus cannot be transmitted from an uninfected individual to any other person (with certain unlikely exceptions). This is not to say that social distancing should be ignored, as it remains an important defense against the spread of the virus if it gets introduced (through a staff member, for example). But now that we know that all the detainees are negative, and there are no recently introduced detainees, the risk of transmission from proximity is greatly reduced. It will happen only if an infected person, such as a guard, is not detected by the screening in place due to being asymptomatic and that person (and the detainees) fail to exercise
8

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 9 of 12

all of the other precautions in place – i.e., wearing masks, avoiding proximity for more than a

moment, washing hands routinely, etc. This means that if a detainee passes by another

detainee’s bed briefly, the risk of transmitting the virus is extremely low because (a) none of the

detainees are presently infected; and (b) the CDC’s guidance indicates contacts for less than

fifteen minutes are not significant enough to justify contact tracing if an infection is found.

On the other hand, it is by no means clear that release is a panacea. While it is true that

individuals have the potential to exercise even greater control over who they come into contact

with if they choose to isolate, it does not mean that they will in fact do so. We know that many

detainees did not self-quarantine upon release even when they were ordered to do so. And now,

with most businesses opening, there is a much smaller likelihood that released detainees will stay

at home.

C. BCHOC Would Be Well Below Capacity with Additional Detainees

Presently, Bristol is significantly below capacity. The current detainee population versus

the capacity is:

Location

Capacity

Current Population

ICE A

66

ICE B

66

14 CLOSED7

2 East

104

35

EE Unit

16

15 (originally from ICE B Unit)

EA Unit

1

1 (female)

7 Owing to a riot by the detainees formerly housed in ICE B, that unit is uninhabitable presently. For the layout of the units, the Court is referred to the attachments to the Motion to Stay, dkt. # 83.
9

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EC Unit

32

1 detainee (15 inmates)

EB Unit

38

0

Thus, the total capacity of these units is 323. The total occupancy, including the non-ICE

inmates in Unit EC, is 81 (66 ICE detainees plus 15 non-ICE in Unit EC). This is twenty-five

percent (25%) of capacity. Even if the arrangements return to the pre-pandemic setup, and

without using units EE, EC and EB, the “normal” capacity at BCHOC for ICE detainees is 212.8

The current detainee population is just over 30% of the normal capacity. Defendants believe that

a 70% reduction from capacity is greater than necessary under any analysis.

D. Social Distancing Is Possible at BCHOC and Is Just One of the Precautions

BCHOC has been following all of the available recommendations from ICE, CDC and

the Massachusetts Department of Public Health since before this litigation began. See

Declarations of Superintendent Souza, Dr. Rencricca (attached to Defendants’ Opposition to the

TRO motion) and Director of Clinical Services Debra Jezard (same). It has updated its practices

to conform to the guidance as it has evolved, by, for example, screening employees before every

shift outside the facility and distributing and requiring the use of face masks.

While the CDC has updated its guidance regarding COVID-19 for correctional and

detention facilities, it still does not recommend large-scale release of detainees, however. See

CDC website https://www.cdc.gov/coronavirus/2019-ncov/community/correction-

8 The current capacity if the isolation units are not used and 2 East is not fully dedicated to immigration detainees (neither restriction is presently in place) is at least 146. 75% of that temporarily low capacity would be 110 detainees. The Court has referenced the 75% figure, citing national ICE guidance. As previously indicated, that number is of total capacity, not the detainee population at the outset of the pandemic. It makes sense to tie any reduction to total capacity because some institutions, such as Bristol, were well below capacity (148 detainees with a capacity of 212) at the outset of the pandemic, while others had higher or lower percentages of capacity.
10

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 11 of 12
detention/index.html (accessed June 10, 2020). E. A Special Master Is Unnecessary The Court determined, correctly, that the conditions of the class members’ confinement
are not properly litigated pursuant to a habeas corpus petition.9 A special master is not necessary or appropriate at this time. The essence of the petition and the complaint is that class members are subject to a risk of infection that violates their constitutional rights. They are not infected and have not become infected over the last three months. The conditions at BCHOC are not causing medical problems.
CONCLUSION The track record at BCHOC speaks volumes. There have been no confirmed positive cases among the detainees. While the reduction in detainee population certainly may have been a factor in this, it is also possible that the virus was kept out of the detainee units entirely. In any event, some additional re-population is likely to be safe and further reduction is certainly not warranted. As stated in the attached declaration of Alysse Wurcel, M.D., infectious disease
9 For an excellent discussion of this issue in a Bureau of Prisons case, see Grinis, et al. v. Spaulding, C.A. No. 20-10738-GAO, Order dated June 11, 2020 (dkt. # 60).
11

Case 1:20-cv-10617-WGY Document 214 Filed 06/11/20 Page 12 of 12

control is a matter of taking multiple steps to mitigate the risks. There is no single solution and it
is impossible for a person to accurately determine an exact safe level for the detainees.
Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov
June 11, 2020

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: June 11, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

12

Case 1:20-cv-10617-WGY Document 214-1 Filed 06/11/20 Page 1 of 4
DECLARATION OF ALYSSE WURCEL, M.D. Pursuant to the authority of 28 U.S.C. § 1746, I, Alysse Wurcel, M.D. declare as follows: 1. I am a medical doctor with a specialty in the area of Infectious Diseases. I attended Tufts University and graduated with a B.A. degree in 2000. I graduated from the University of Pennsylvania’s Medical School in 2008. I completed a residency in internal medicine at the Massachusetts General Hospital in 2011. In 2012, I did the first of two fellowships in Infectious Diseases at Columbia University Medical Center in New York City. I did a second fellowship in Infectious Diseases at Tufts Medical Center in 2015. I completed a Masters degree in Clinical and Translational Research at Tufts University’s School of Graduate Biomedical Sciences in 2014. I am a board-certified infectious disease specialist with a strong track record of successful infectious diseases-related research in vulnerable populations including people with HIV, people who use drugs, and people who are incarcerated. I have published over 40 manuscripts. I am a member of the Massachusetts Medical Society, the Infectious Diseases Society of America, the HIV Medicine Association, and the Infectious Diseases Society of America Opioid Task Force, among others. Since 2014, I have held dual academic positions as an Assistant Professor in both the Tufts Medical Center Department of Geographic Medicine and Infectious Diseases, as well as the Department of Public Health and Community Medicine, at Tufts University School of Medicine in Boston. For the 2015-2016 academic year, I was honored as the top lecturer. I have received a number of other awards, grants and recognition. Much of my work concerns underserved and underprivileged communities. I am currently leading an investigation involving hepatitis C virus (“HCV”) testing in jails. In addition to my inpatient and outpatient responsibilities at Tufts Medical Center, I work as a clinician treating HIV and HCV in six jails in Eastern Massachusetts. I am a consultant to the Massachusetts

Case 1:20-cv-10617-WGY Document 214-1 Filed 06/11/20 Page 2 of 4
Sheriffs’ Association for COVID-19 prevention and mitigation. I am not being directly paid for my time in preparing this declaration and my opinion stated herein is not affected, in any manner of which I am consciously aware, by such employment.
2. I have been asked to address safety issues at the Bristol County House of Corrections through the lens of what, if any, is a safe level of detainees in light of the coronavirus pandemic. As the Court is likely aware, this is not a simple question susceptible of arithmetic determination.
3. COVID-19, the disease caused by SARS COV2, is a new disease and we are learning more every day. It appears to be transmitted primarily through droplets. This is typically in a sneeze or exhalation from someone infected with the virus. Since COVID-19 is spread via droplets containing the virus coming out of the mouth or nose of an infected person primarily, the nose, mouth and eyes are the most susceptible area of a person exposed to the virus. This is the focus of the CDC in its recommendations for detention and prison facilities, and it is why social distancing is recommended in the first place, and why masks are now recommended for those who cannot self-isolate.1 While it is certainly true that the virus can also be transmitted by touching a surface that an infected person has touched, this is not addressed by social distancing
1 As stated on the CDC website: “The virus is thought to spread mainly from person-to-person. -- Between people who are in close contact with one another (within about 6 feet). -- Through respiratory droplets produced when an infected person coughs, sneezes or talks. -- These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.”
CDC website at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html (accessed June 9, 2020 at 12:19 p.m.).
2

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so much as by proper hand washing, avoiding touching one’s face, and disinfecting common areas.
4. There are several lines of defense for transmission of a droplet-spread virus from one person to another. The first is to keep people that are known or suspected of infection away from others. For a correctional facility, this means screening staff and any inmates or detainees prior to entry into the facility. A second step in this process is to quarantine anyone suspected of an infection if they are an inmate or detainee already within the facility.
5. Another means of defense against infection is to rigorously disinfect surfaces and areas within the facility. Hand washing has been identified by the CDC as a first line of defense against the spread of COVID-19, and I know from my training, experience, and expertise that this is a very important aspect of infection prevention and containment.
6. In addition to taking steps to keep the virus out of the facility and to kill the virus on surfaces, there are steps that can be taken to limit the likelihood of person-to-person transmission. These steps include requiring face masks to be worn, encouraging frequent hand washing (and avoiding touching one’s face), and providing sufficient space so detainees and staff can maintain a distance of six feet or more.
7. Testing all people in jail, even asymptomatic people, can give you a sense if there is any COVID-19 in the jail. This is a snapshot in time, however, as the test can be done while the virus is still incubating. Jails that have the ability to test everyone, even asymptomatic people, are well positioned to identify and contain epidemics.
8. This spacing of individuals recommended by the CDC is widely referred to as “social distancing.” Social distancing is challenging in jails. Social distancing is more possible in jails
3

Case 1:20-cv-10617-WGY Document 214-1 Filed 06/11/20 Page 4 of 4 that are under capacity. CDC does not anticipate that social distancing will be possible at all times within a correctional facility.
8. In the realm of infectious diseases, there are always trade-offs and practical considerations. I view prevention and mitigation in the jails through a harm reduction lens. Harm reduction is a framework for approaching drug use disorder. Someone may not be able to stop injecting heroin, but they can move from injecting to sniffing heroin. In the jails, it would be impossible to completely effectively socially distance and give people who are incarcerated time out of their cell. I have advised each of the jails on how to mitigate risk through masking, cleaning, and trying to encourage social distancing. I declare under penalty of perjury that the foregoing is true and correct. Signed on the 10 day of June, 2020
4

 
 Case 1:20-cv-10617-WGY Document 26 Filed 03/30/20 Page 1 of 27

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

OPPOSITION TO MOTION FOR A TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

The Bristol County House of Correction (“BCHOC”) has enacted numerous safety

measures aimed at mitigating the risk that inmates, detainees, and staff contract COVID-19. To

date, no inmate, detainee, or staff member at BCHOC has tested positive. The conditions at

BCHOC bear no resemblance to the claims Plaintiffs make in their filings. Plaintiffs, in their petition/complaint and their subsequent motion for temporary restraining order,1 seek immediate

release of all immigration detainees at BCHOC, as well as an order prohibiting further detention

of immigration detainees at BCHOC indefinitely. Plaintiffs have not met their burden of proof in

seeking extraordinary relief, nor have they established that a class of all BCHOC immigration

1 As of this date, Defendants have not been properly served with the pleadings in this case. Counsel for the United States received the motion for temporary restraining order (the “TRO”) mid-day Saturday, March 28, 2020, via email from the court, with a hearing on the TRO scheduled the following Monday at 11:00 a.m. In addition, Plaintiffs supplemented an alreadyvoluminous record just before noon on Sunday, March 29, 2020. Defendants respectfully request, as appropriate, an opportunity to amend their response in light of the truncated response time, which would be a challenge for counsel and the agencies even in normal work conditions.

Case 1:20-cv-10617-WGY Document 26 Filed 03/30/20 Page 2 of 27
detainees, both current and future, should be certified. First, Plaintiffs do not have a cognizable injury, much less an irreparable one. As is
shown in the attached declaration of Bristol County Sheriff Thomas Hodgson, BCHOC has taken extensive steps to limit the threat of COVID-19 to all at the facility. Second, habeas relief is inappropriate for Plaintiffs’ conditions of confinement claims, which must be brought under the Civil Rights Statute. Finally, Plaintiffs’ request for a TRO should be denied because their constitutional claims lack merit and the balance of equities and public interest tilt against granting a temporary restraining order.
I. FACTS2 The named Plaintiffs in this case are detained at BCHOC. Plaintiff Celimen Savino has a
final order of removal. She presents a risk to the community because she has at least nine arraignments in Massachusetts since 2008 as a result of eleven arrests, including seven arrests for aggravated assault and multiple arrests for violating the restraining order initiated against her by her husband. She threatened him repeatedly with violence. Plaintiff Medeiros Neves has an OUI conviction BCHOC houses the majority of its immigration detainees in a building separate from the main campus, and to which the general inmate population has no access. Only detainees who have been classified by ICE as high risk, typically based upon violent behavior (and not in any way related to COVID-19), are housed with non-immigration pre-trial inmates, but this is not in the general population. The high-risk detainees are in a modular facility (“2 East”) on the main campus. While it is theoretically possible that one of these high-risk detainees could be re-classified to a lower risk category, and be moved to the separate ICE
2 All facts stated herein are taken from the Affidavit of Sheriff Thomas M. Hodgson, attached hereto as Exhibit A, unless stated otherwise.
2

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detention building, it has not happened to the knowledge of Bristol County Sheriff’s Office since the outbreak of COVID-19. If such a transfer did occur, the transferee would be medically screened prior to the move.
Moreover, ICE has taken numerous steps to respond to this rapidly-moving health crisis. See, e.g., the publicly available ICE Guidance on COVID-19, available at https://www.ice.gov/coronavirus (viewed March 29, 2020), as well as Exhibit 2 hereto (March 27, 2020 Memorandum for Wardens and Superintendents on COVID-19, regarding some of the measures ICE has taken to mitigate risk of COVID-19 infection.
As stated in the attached Affidavit of Sheriff Thomas Hodgson, the health care of inmates and detainees at BCHOC is now, and since 2009 has been, administered by Correctional Psychiatric Services, Inc. (“CPS”) under the direct supervision of Jose Veliz, M.D and Medical Director Nicholas Rencricca, MD, who have combined correctional experience of over 50 years. CPS medical personnel are continually on site 24/7 at both of the BCHOC facilities to address, manage, and treat any and all medical issues arising from the inmate/detainee population. Medical issues that require the attention of medical specialists or hospitalization are immediately transported to such facilities. Bristol County is fortunate to have access to three well respected hospitals in the area, St. Luke’s Hospital, Charlton Memorial Hospital, and Morton Hospital, all within a few minutes distance by transport or ambulance. CPS has relationships with specialty local community providers, many of which are located nearby on Faunce Corner Road, to address any conditions requiring a specialist, i.e., eye care, orthopedic, imaging, dermatology, OBGYN, Oncology, Neurology, ENT, and many more specialists, who are utilized on a routine basis. Specialty clinics at the Shattuck Hospital are also utilized when needed. BCHOC has successfully managed inmates with kidney failure, cancer, infectious disease issues, and inmates
3

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with chronic illnesses. In addition, BCHOC has the ability to utilize tele-health with community
providers as well as CPS onsite providers.
The Bristol County Sheriff’s Office (“BCSO”) is currently, and has been for many years,
certified by the following nationally recognized entities: American Corrections Association,
National Commission for Corrections Health Care, and also certified as in compliance with the
federal Prison Rape Elimination Act (PREA) protocols.
With the onset of COVID-19 in the United States, in conjunction and consultation with
the Massachusetts Department of Public Health, the CDC and other public health agencies and
correctional institutions, CPS and the BCHOC have instituted strict protocols to keep inmates,
detainees, and staff safe, and take all prudent measures to prevent exposure to the COVID-19
virus.
Since February, the following measures have been undertaken:
a. All inmate/detainee visitation, with the sole exception of attorney and clergy visitation, has been cancelled until further notice. Prior to the COVID-19 crisis, all inmate/detainee visitations, with the exception of attorney visits, had been noncontact.
b. All feeding is done inside the housing or cells and inmates do not congregate for meals in the main dining hall. Outside recreation is done as usual daily except that it is now done on split schedule to prevent close inmate-to- inmate contact.
c. All housing units are sanitized no less than three times per day. Fresh air is constantly circulated by opening windows and utilizing handler/vents throughout the day.
d. Volunteer assisted programs have been suspended but program material continue to be available to those incarcerated.
e. Attorneys and clergy, who visit as well as all BCHOC staff, are medically screened prior to entrance by questions relating to COVID-19 symptoms and by body temperature assessment.
f. Inmates who are admitted to custody are medically screened by CPS staff prior to being admitted to the general population with the intake area and holding cells being continually sanitized. Protocol requires that any admission suspected of
4

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having contracted COVID-19 is provided a PPE mask, placed in isolation for 14 days and continually monitored for symptoms and followed continually by CPS medical personnel as well as the Mental Health Department.
g. During the crisis all detainees are permitted two free telephone calls per week added to their regular allotment.
h. Medical pass and normal sick call procedures continue to run as normal with added scrutiny of both CPS medial staff and correction officers on alert for any prisoner experiencing or complaining of symptoms consistent with COVID-19 illness. In conjunction with community standards, Providers in the Health Services Unit are seeing inmates with emergent issues only in order to minimize the possibility of contamination and spread of the disease and to provide containment. Medical continues to evaluate and adjust its operations in conjunction with circumstances as they arise and with the guidance provided by CDC and DPH.
i. CPS medical personnel at the BCHOC consist of nursing staff composed of RNs and LPNs 24/7. At least two nurse practitioners are on site Monday-Friday. The Medial Director of the BCHOC is Dr. Rencricca is available 24/7 by telehealth. Outside medical providers are on call 24/7 if needed and medical assistants are on site 40 hours per week. Mental Health clinicians are on call 24/7 and all mental health evaluations and sick slips are current.
j. Sick slips that are submitted either by ICE detainees or other prisoners are seen within 24 hours by either a nurse or mental health clinician depending on the circumstances. Since the COVID-19 emergency sick slips are picked up twice per day for medical triage. Medical has identified all inmates/detainees who are at high risk, i.e. older than 60 years and/or have chronic conditions making them more susceptible to COVID-19. Inmates/detainees are seen immediately if they either present with symptoms or ask to be seen believing they have symptoms.
k. All inmate treatment and educational programs, mental health services including evaluations, assessments and therapies, detoxification, behavioral modification programs and therapies for acute and chronic illnesses are carried on as normal with the exception of groups meeting and utilizing the social distance precautions.
l. All inmates and detainees who have chronic illnesses which would make them immune-compromised or who are over sixty years of age are being specially monitored by officers and health personnel for the development of any symptoms consistent with COVID-19. CPS is continually monitoring the on-site situation and developing emergency plans for cohorting high risk inmates.
m. Staff and inmates have been educated as to proper sanitary procedure, including repeated hand washing, and social distancing and hand sanitizers as well as soap and water are readily available to all inmates and staff.
n. For those inmates nearing end of sentence, an extensive Re-entry program
5

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continues to operate normally insuring that each inmate scheduled for release into the community has in place proper housing and the continuity of medical care. o. Normal schedules are maintained with the bail magistrates and unless ordered by the court, appearances with courts are performed via video-conferencing and telephone. Prior to every proceeding a prisoner is afforded telephone access to his or her attorney. Some regional lock-up and pre-trial detainees have been released by the courts either on personal recognizance or on GPS bracelets. Additionally, when the district attorney and the defendant’s counsel have agreed on a disposition, the courts have undertaken the practice of faxing a “disposition form” to the BCHOC and the defendant is able to undergo a colloquy with the court by tele-conferencing, sign the form at the BCHOC and often be released on the spot. The BCHOC currently houses 148 ICE detainees, 8 of whom are female. Of those, 92 detainees are housed in a separate ICE detention facility on campus and the rest (including females) are housed with pre-trial detainees in specific housing units as per ICE guidelines. The housing areas for all ICE detainees are cleansed with disinfectant cleaners every shift which include Virex and 409/Lysol. Also a hydrostatic spray cleaner is used at least once per day on the third shift by prison staff and in high traffic areas more frequently. Hand sanitizer units are outside the doors of each unit and detainees are permitted gloves and cleaner if they want to do extra cleaning in their own cells and bunks. BCHOC ICE detainees do not come from the outside but rather from other ICE facilities so quarantine is not recommended. BCHOC had one instance, however, where 16 detainees were brought in to the facility and the transporting deputy from New Hampshire reported symptoms after she left the facility. After the BCHOC received word of the possible issue with that deputy, it quarantined all 16 in single cells, masked them, and had medical staff see them daily and tested their temperature for several days and had medical staff continue to monitor them until the deputy’s test came back negative. In addition to the physical separation of ICE detainees from the general inmate population, BCHOC has taken numerous other steps to limit the risk of contamination from the outside. For example, attorney visits for ICE detainees in the ICE detention are non-contact and
6

Case 1:20-cv-10617-WGY Document 26 Filed 03/30/20 Page 7 of 27
are only by request. The BCSO did not receive what the Plaintiffs describe as “letter #1,” which appears to
have gone directly to the media, but it did receive “letter #2.” Staff addressed the concerns expressed in the letter by holding a unit meeting with all detainees to discuss their concerns. Maintenance concerns were also addressed and one more outside recreation period was added to allow more room for social distancing. BCHOC also opened outside doors to permit more ventilation and added more cycling of the air handlers. All memos from the Sheriff concerning restrictions and pre-screenings and attorney visits and regular visits were translated into Spanish and Portuguese. Thus, it is inaccurate to claim, as Plaintiffs do, that numerous requests regarding COVID-19 have been ignored or that the institution has not been responsive. The initiation of BCHOC’s COVOID-19 preventative measures have been well received by the inmate population, who have expressed their understanding as to the measures taken and have been cooperative. See Exhibit 1 hereto.
Moreover, the two officers about whom the Plaintiffs expressed concern regarding possible symptoms of COVID-19 did call out sick for several days but did not have the COVID19 virus and have since returned to full duty.
At present no inmate, detainee or staff member has tested positive for COVID-19. BCHOC’s medical provider has stated that the facility currently has, on hand, the appropriate personal protective equipment, and other equipment to meet the needs to combat COVID-19 and protect health care workers and other staff.
Contrary to the allegations contained in the Plaintiff’s Petition and expert affidavits, the BCHOC penal facilities are not over-capacity nor have they been running over capacity for several years. The BCHOC facilities were certified for a capacity of 1638 persons and as of
7

Case 1:20-cv-10617-WGY Document 26 Filed 03/30/20 Page 8 of 27
March 24, 2020, the population is 931, which translates into 57% capacity. While the percentage of capacity for ICE detainees in the segregated units is somewhat higher, it remains well below capacity.
II. ARGUMENT A. Temporary Restraining Orders Are an Extraordinary Remedy “It frequently is observed that a preliminary injunction is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (internal quotations omitted); Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Peoples Federal Savings Bank v. People’s United Bank, 672 F. 2d 1, 8-9 (1st Cir. 2012)(preliminary injunction is an extraordinary and drastic remedy that is never awarded as of right). The standard for issuing a temporary restraining order is essentially the same as that for a preliminary injunction. See Largess v. Supreme Judicial Court for State of Massachusetts, 317 F. Supp. 2d 77, 81 (D. Mass. 2004).
In moving for a temporary restraining order or a preliminary injunction plaintiffs “must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Id. (setting out the standard four-part test); Equal Employment Opportunity Comm’n, v. Astra USA, Inc., 94 F.3d 738, 742 (1st Cir. 1996)(burden of proof in a temporary restraining order or preliminary injunction motion is on the moving party). Thus, the Plaintiffs must meet all four requirements of the traditional test.
Courts are generally disinclined to issue mandatory preliminary injunctions unless the facts and law are clearly in favor of the moving party. See Northeastern University v. BAE
8

Case 1:20-cv-10617-WGY Document 26 Filed 03/30/20 Page 9 of 27
Systems Information and Electronic Systems Integration, Inc., Civil Action No. 13-12497-NMG, 2013 WL 6210646 at *7 (D. Mass. Nov. 27, 2017) citing L.L. Bean v. Bank of America, 630 F. Supp. 2d 83, 89 (D. Me. 2009). The likelihood of success on merits is the sine qua non of such motions. Jean v. Massachusetts State Police, 492 F. 3d 24, 26 (1st Cir. 2007).
In a situation where a movant seeks to require action of the nonmoving party, in alteration of the status quo, rather than maintenance of it, courts have held the moving party to a more rigorous standard. See Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 151 (1st Cir. 1998). A mandatory preliminary injunction “disturbs rather than preserves the status quo” by affirmatively mandating action by the non-moving party. See Lewis v. General Electric Co., 37 F. Supp. 2d 55, 62 (D. Mass. 1999).
B. There Is No Class that May Be Certified Plaintiffs purport to represent a class of people similarly situated. The class is all persons detained for immigration purposes now, or forever after, at BCHOC. See TRO Memorandum at p. 5. As an initial matter, Congress has prohibited the resolution of immigration habeas petition’s like this through actions. See 8 U.S.C. 1252(f)(1). This Court lacks jurisdiction to enjoin the normal operation of 8 U.S.C. § 1226(c). The text of 8 U.S.C. § 1252(f) makes this plain: “Regardless of the nature of the action or claim . . . no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221-1232], other than with respect to the application of such provisions to an individual alien against whom proceedings . . . have been initiated.” The Supreme Court has instructed that the provision is a bar on “classwide injunctive relief against the operation of §§ 1221-1231” with a carve out that applies to “individual cases.” Reno v. Am. Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999) (emphasis added). The Court in
9

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Jennings v. Rodriguez, indicated that section 1252(f)(1) would apply to constitutional claims like those raised by Plaintiffs because they seek to enjoin the ordinary application of section 1226(c) as unconstitutional. See No. 15-1204, --- U.S. ---, 138 S. Ct. 830, 852 (recognizing that the Ninth Circuit had found that section 1252(f)(1) did not bar its jurisdiction over the statutory claims but concluding that “[t]his reasoning does not seem to apply to an order granting relief on constitutional grounds”). This provision is entitled “limit on injunctive relief,” and it unquestionably prohibits class-based injunctions while preserving individual access to a habeas writ and all forms of equitable relief.3
In considering Jennings on remand from the Supreme Court, the Ninth Circuit raised the same concern as in Reid regarding the nature of relief, and directed that “[t]he district court must also consider whether a declaration that the detention statutes are unconstitutional because they contain no process for seeking bail is an injunction or restraint on the operation of the detention statutes. 8 U.S.C. § 1252(f)(1).” Rodriguez, 909 F.3d at 256 n.1. The Supreme Court adopted this rationale in California v. Grace Brethren Church, 457 U.S. 393, 408 (1982), where it held that the Tax Injunction Act barred both declaratory and injunctive relief “because there is little practical difference between injunctive and declaratory relief”; thus, the court would be “hard pressed to conclude that Congress intended to prohibit taxpayers from seeking one form of anticipatory relief … while permitting them to seek another, thereby defeating the principle purpose of the [Act.].” See also Samuels v. Mackell, 401 U.S. 66, 72 (1971) (declaratory as well as injunctive relief was barred where “the declaratory relief alone has virtually the same practical impact as a formal injunction would”). The Sixth Circuit recently echoed this sentiment, stating
3 For these and other reasons, Judge Saris’s denying defendants’ motion to decertify the class and grating summary judgment in Reid v. Donelan, Case No. 3:13-cv-30125-PBS, are now on appeal to the First Circuit Court of Appeals.
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it was “skeptical” that “Petitioners would prevail” on whether § 1252(f)(1) bars declaratory
relief. Hamama v. Adducci, 912 F.3d 869, 880 n.8 (6th Cir. 2018). It stated that, while “[i]t is
true that ‘declaratory relief will not always be the functional equivalent of injunctive relief,’ …
in this case, it is the functional equivalent.” Id. (citing Alli v. Decker, 650 F.3d 1007, 1014 (3d
Cir. 2011)). “The practical effect of a grant of declaratory relief as to Petitioners’ detention
would be a class-wide injunction against the detention provisions, which is barred by
§ 1252(f)(1).” Id.4
Additionally, Plaintiffs cannot meet their burden “of establishing the elements necessary
for class certification: the four requirements of 23(a) and one of the several requirements of
23(b).’” Abla v. Brinker Rest. Corp., 279 F.R.D. 51, 55 (D. Mass. 2011) (quoting In re Relafen
Antitrust Litig., 218 F.R.D. 337, 341 (D. Mass. 2003)).
4 The Sixth Circuit’s prior decision in Hamama v. Adducci, 912 F.3d 869, 878–79 (6th Cir. 2018), is also instructive: “Nevertheless, we find that 8 U.S.C. § 1252(f)(1) bars the district court from entering class-wide injunctive relief for the detention-based claims. In our view, Reno [525 U.S. 471] unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief for the detention-based claims. Petitioners disagree and raise three objections. We are not alone in our interpretation of § 1252(f)(1). Other courts, following Reno's guidance, have determined that they do not have jurisdiction under § 1252(f)(1) to issue class-based injunctive relief against the removal and detention statute,” citing Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999); Pimentel v. Holder, 2011 WL 1496756, at *2 (D.N.J. Apr. 18, 2011); Belgrave v. Greene, 2000 WL 35526417, at *4 (D. Colo. Dec. 5, 2000) (explaining that § 1252(f)(1) does not bar detainees from seeking habeas relief from detention, but it does “require[ ] that those challenges be brought on a case-by-case basis”). The Sixth Circuit continued: “Second, the claim that “the district court was not enjoining or restraining the statutes” is implausible on its face. The district court, among other things, ordered release of detainees held “for six months or more, unless a bond hearing for any such detainee is conducted”; created out of thin air a requirement for bond hearings that does not exist in the statute; and adopted new standards that the government must meet at the bond hearings (“shall release ... unless the immigration judge finds, by clear and convincing evidence, that the detainee is either a flight risk or a public safety risk”). If these limitations on what the government can and cannot do under the removal and detention provisions are not “restraints,” it is not at all clear what would qualify as a restraint. The district court did not have jurisdiction to enter class-wide injunctive relief on Petitioners' detention-based claims.” Id., at 879-880.
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While Plaintiffs claim to have underlying conditions that make them more susceptible to COVID-19, there is nothing in Plaintiffs’ briefs to show that all the class members are similarly situated. The ICE detainees are of different ages and all present different levels of health at this time. Indeed, the named Plaintiffs say they are “particularly vulnerable” because of their medical conditions. TRO Memorandum at p. 17. Nonetheless, in a thin attempt to try and position differently situated class member, Plaintiffs make a speculative and broad claim that detention is stressful, stress makes one more susceptible to illness, therefore all class members have an underlying medical condition that justifies immediate release.5
Moreover, ICE estimates that at least one-third of the ICE detainees at BCHOC may be subject to statutorily-mandated detention. Such mandatory detention could stem from an alien charged as an arriving alien to the United States, an alien’s criminal conviction record, or from accrual of a final order of removal issued by an immigration judge or the Board of Immigration Appeals. Plaintiffs have not addressed how a single class could address the different underlying circumstances that brought the detainees into ICE custody. Further, each detainee presents a different risk of flight and/or public safety threat if released. Each one was or will in the near future have received an individualized detention determination by an immigration judge, unless subject to mandatory detention. See 8 U.S.C. § 1226(a). Unless the alien received a bond order for which he has not fulfilled, immigration judges have determined that the detainees should
5 See generally Francisco M. v. Decker, D. N.J. March 25, 2020, Civil Action No. 202176 (CCC)(unpub.), where the district court denied a detainee’s request for immediate relief based on a fear of the coronavirus (“Petitioner’s alleged depression, a perhaps natural result of being detained even where that detention is entirely lawful, likewise is not the sort of serious medical issue which the Third Circuit has found to warrant bail for state prisoners who are seeking habeas relief. Hadden therefore does not stand for the proposition that Petitioner should be immediately released even assuming arguendo it applies to immigration detainees, a finding this Court does not and need not make.”), citing Lucas v. Hadden, 790 F.2d 365 (3d Cir. 1986).
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continue to be detained as they represent public safety or flight risks if released. The proposed class lacks uniformity and the Plaintiffs are not representative of the proposed class members.6
C. Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits 1. Success on the Merits Is a Threshold Determination.
Likelihood of success on the merits is a threshold issue. See United States v. Weikert, 504 F.3d 1, 5 (1st Cir.2007) (“[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.”) (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002)). Plaintiffs’ constitutional and statutory claims are unlikely to succeed on the merits.
The Supreme Court has made clear that “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005); see also Appiah v. United States INS, 202 F.3d 704, 709 (4th Cir. 2000) (“Because suspension of deportation is discretionary, it does not create a protectable liberty or property interest.”).
2. Plaintiffs Lack Article III Standing “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The “irreducible constitutional minimum of standing” contains three requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and
6 For example, named plaintiff Celimen Savino has a final order of removal and is, therefore, detained pursuant to 8 U.S.C. 1231. Her habeas corpus petition seeking a new bond hearing was recently denied on that ground by Judge Saris; see case number 20-10259-PBS.
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particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. Second, the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the Court.” Id. Third, it must be “likely,” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision.” Id. at 560-61 (internal citations omitted). Plaintiffs do not raise a cognizable injury, nor is the alleged injury redressable by this Court.
Plaintiffs’ allege that Defendants’ ongoing detention of Plaintiffs violates the Due Process Clause” under the Fifth Amendment because “they risk serious illness and death if infected with COVID-19. Named Plaintiffs allege that because of their pre-existing medical conditions, they bear an elevated risk of serious, adverse outcomes if they contract COVID-19. However, Plaintiffs’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative. Moreover, Bristol County has expended extensive resources and efforts to address the very issues that Plaintiffs have identified. And, as noted again, there are no cases of COVID-19 at the BCHOC.
To establish injury in fact, a plaintiff must show that he or she suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560. Injury in fact is a “constitutional requirement” and is the “[f ]irst and foremost” of standing’s three elements. Id. at 1547-48 (quoting Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 103 (1998)). To be “particularized” the injury “must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’” Spokeo, Inc., 136 S. Ct. at 1548. A “concrete” injury must be “‘de facto’; that is, it
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must actually exist[,]” that is, it must be “real,” and not “abstract.” Id. While “the risk of real harm” may, in some circumstances, be sufficiently concrete, “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes -- that the injury is ‘certainly impending,’” Lujan, 504 U.S. at 568; see Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (“The common definition of ‘imminent,’ however, does not refer only to events that are already taking place, but to those events ready to take place or hanging threateningly over one’s head.”).
Plaintiffs’ alleged harm—that their detention increases their risk of COVID-19—is speculative. Plaintiffs have not alleged that COVID-19 has spread to the BCHOC facility. Even assuming the “crowded conditions” Plaintiffs allege, crowding in and of itself does not cause COVID-19 infection if none in the group has contracted COVID-19. Plaintiffs’ claims of future injury are hypothetical, and Plaintiffs are not entitled to immediate release from detention based on a conjectural injury that they have not suffered. An injunction is “unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged [] -- a ‘likelihood of substantial and immediate irreparable injury.’” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Moreover, even if COVID-19 were introduced to BCHOC, Plaintiffs have not alleged— nor could they allege—that Defendants are unprepared to respond to that contingency, particularly in light of the known facts concerning ICE’s response to the challenges posed by COVID-19 and BCHOC’s efforts as outlined in Exhibit 1.
3. Plaintiffs Have Not Established a Fifth Amendment Violation. To evaluate the constitutionality of a pretrial detention condition under the Fifth Amendment, a district court must determine whether those conditions “amount to punishment of
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the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); see also Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 2473-74 (2015). Punishment may be shown through express intent or a restriction or condition that is not “reasonably related to a legitimate governmental objective.” Bell, 441 U.S. at 539.
First, Plaintiffs do not present allegations or evidence to show Defendants have an “express intent” to punish Plaintiffs. Second, preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective. See Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001).7 Third, Plaintiffs’ current confinement does not appear excessive in relation to that objective. Plaintiffs do not cite to authority, and the counsel is aware of none, under which the fact of detention itself becomes an “excessive” condition solely due to the risk of a communicable disease outbreak—even one as serious as COVID-19.
Plaintiffs’ cited authority addresses the exposure of inmates or detainees to existing conditions within the facility at issue. See, e.g., Hutto v. Finney, 437 U.S. 678, 682-83 (1978) (mingling of inmates with infectious diseases with others); Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (same); Helling v. McKinney, 509 U.S. 25 at 33, 35, (1993) (placement of inmate with emphysema in a cell with a cellmate who smoked often). Here, there is no evidence that anyone at BCHOC has COVID-19, and Plaintiffs do not address the measures Defendants have taken and are taking to prevent such a spread from occurring. (See Exhibit 1 passim)(detailing measures to prevent the spread of COVID-19, including suspending social visitation, assessing
7 Plaintiffs cite Zadvydas for the proposition that indefinite detention is disfavored, but that aspect of the Supreme Court’s decision is not implicated in this case.
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detainees for fever and respiratory illness, isolating detainees with COVID-19-compatible symptoms, and instructing detainees on hand washing and hygiene). Finally, even if Plaintiffs could show a Fifth Amendment violation, Plaintiffs provide no authority under which such a violation would justify immediate release, as opposed to injunctive relief that would leave Plaintiffs detained while ameliorating any alleged violative conditions within the facility. See, e.g., Seifert v. Spaulding, No. 18-11600-MGM, 2018 WL 7285967, at *2 (D. Mass. Sept. 11, 2018), report and recommendation adopted, No. CV 18-11600-MGM, 2019 WL 538253 (D. Mass. Feb. 11, 2019) (“Even where a prisoner claims that his only hope of obtaining adequate medical treatment is through release, a court cannot order release as a remedy for conditions of confinement that violate the Eighth Amendment violation.”), (citing Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (“If an inmate established that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option.”), and Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (even where a prisoner proves mistreatment in prison that amounts to cruel and unusual punishment, “relief of an Eighth Amendment violation does not include release from confinement”). Thus, the court should conclude that Plaintiffs fail to meet their burden of clearly showing that they are likely to succeed on the merits of their claims. See, e.g., Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *2–3 (W.D. Wash. Mar. 19, 2020); Francisco M. v. Decker, D. N.J. March 25, 2020, Civil Action No. 20-2176 (CCC)(unpub.); Sacal-Micha (S.D.Tex.)(full cite forthcoming).
As stated in his affidavit, during the twenty-three years that Thomas M. Hodgson has been Sheriff, the BCHOC has safely and efficiently managed several pandemics including the H1N1 and SARS viruses as well as the HIV and Hepatitis C explosion in the community.
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4. Plaintiffs Have Not Established a Likelihood of Success under the Rehabilitation Act.
Plaintiffs claim that not only are they disabled, but that the entire immigration detainee population at BCHOC is disabled within the meaning of the Rehabilitation Act. As is separately argued regarding class certification, this is highly unlikely and certainly has not been demonstrated.
The Rehabilitation Act prohibits federal agencies from discriminating against people with disabilities. 29 U.S.C. § 794(b)(2)(B). Section 504 of the Act provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Plaintiffs have the burden of showing that Defendants violated Section 504 of the Rehabilitation Act. To prevail on Rehabilitation Act case, a plaintiff must establish that he is a qualified individual with a disability, that he was denied a benefit of the prison’s services or otherwise discriminated against, and that the denial of services or discrimination was by reason of his disability. See Phelps v. Carr, Civil Action No. 07-cv-40245, 2010 WL 3895461 at *3 (D. Mass. Sept. 30, 2010). See also Buchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006); Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010) (plaintiff must show that: “(1) [they] needed the accommodation to enjoy meaningful access to benefits, (2) the government was on notice that [they] needed the accommodation but did not provide it, and (3) there was a specific reasonable accommodation available.” ).
Plaintiffs have failed to show, first, that they are disabled. The term “disability” is a term of art under the Rehabilitation Act. It does not mean, as Plaintiffs imply, that anyone who is subject to stress or potential mental health issues is disabled. As stated by the First Circuit in
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McDonough v. Donahoe, 673 F.3d 41, 46–47 (1st Cir. 2012):
To qualify as “disabled” under the Rehabilitation Act's first disability definition, we apply a three-part analysis. First, the plaintiff must establish that she suffers from an impairment. Next, the plaintiff must show that the impairment affects a major life activity, and third, that the impairment substantially limits the major life activity. The phrases ‘substantially limits' and ‘major life activities' must be strictly interpreted ‘to create a demanding standard for qualifying as disabled.’
Second, Plaintiffs have failed to show that Defendants denied Plaintiffs a reasonable
accommodation that they needed. Indeed, Plaintiffs would have this Court assume that Celimen
Savino is disabled, under the statute, by her asthma and that the refusal to release her
immediately is a denial of a reasonable accommodation. Similarly, but even more remotely,
Plaintiff Medeiros Neves claims he is disabled by his anxiety and depression. Simply put, that is
not how the Rehabilitation Act works. Plaintiffs must establish that they in fact have a statutory
disability, that it prevents them from accessing services at BCHOC, and that there is no
reasonable accommodation which would allow such access except for immediate release. Both
named Plaintiffs fail to show that they needed an accommodation, that Defendants were on
notice that they required an accommodation but failed to provide one, and that the requested
accommodation would have been available and reasonable.
Contrary to Plaintiffs’ argument, Defendants are not able to determine whether an
individual has a disability or requires an accommodation unless they have notice that the individual has a disability or needs an accommodation.8 Moreover, prison administrators
8 Under the detention standards that apply to various immigration detention facilities, Defendants have screening procedures to identify medical and mental health impairments and any requisite reasonable accommodations that comply with federal law, including the Rehabilitation Act. See Immigration and Customs Enforcement, Detention Standards, https://www.ice.gov/detentionstandards/2019 (last visited Feb. 7, 2020); see, e.g., Immigration Customs and Enforcement, Performance-Based National Detention Standards 2011 (rev. 2016),
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“should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1974). Here, because Plaintiffs have not set forth the requisite allegations in their Complaint, they have failed to state a claim under the Rehabilitation Act and are unlikely to succeed on the merits.
D. Plaintiffs Have Not Demonstrated They Will Suffer Irreparable Harm As stated in Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *2–3 (W.D. Wash. Mar. 19, 2020):
Plaintiffs do not show that “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. The “possibility” of harm is insufficient to warrant the extraordinary relief of a TRO. See id. There is no evidence of an outbreak at the detention center or that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur. Accordingly, the court concludes that Plaintiffs fail to meet their burden of clearly showing that irreparable harm is likely in the absence of an injunction. The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original). “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. Conclusory or speculative allegations are not enough to establish a likelihood of irreparable harm. Herb Reed Enters., LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239, 1250
https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf.; see also Immigration Customs and Enforcement, National Detention Standards For Non-Dedicated Facilities (rev. 2019), https://www.ice.gov/doclib/detention-standards/2019/nds2019.pdf. See also Exhibit 1 hereto regarding the specific steps taken at BCHOC.
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(9th Cir. 2013); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.”); Am. Passage Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (finding irreparable harm not established by statements that “are conclusory and without sufficient support in facts”).
As stated above, Plaintiffs allege that only release from BCHOC into Massachusetts, one of the hot spots of the American COVID-19 crisis, will spare them the heightened risk of adverse consequences from COVID-19 due to their pre-existing conditions. This is not only speculative, but it is unlikely. Plaintiffs do not explain how they will suffer irreparable harm in the absence of an order requiring their release, given that Plaintiffs’ existing medical care would be interrupted if not ended as a consequence of their release. If Plaintiffs continue to receive adequate medical care and shelter from COVID-19 in immigration detention, their harm is non-existent much less irreparable, and misstate the actual conditions and measures implemented at the facility.
E. Plaintiffs Have Failed to Address the Impact on the Public In the immigration context, the Supreme Court has consistently upheld the constitutionality of detention, citing the Government’s legitimate interest in protecting the public and preventing aliens from absconding into the United States and never appearing for their removal proceedings or interfering with the effectuation of their lawfully issued final orders of removal. See Jennings v. Rodriguez, 138 S. Ct. 830,836 (2018); Demore, 538 U.S. at 520-22; Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). Nor is detention pending removal an “excessive” means of achieving those interests. The Supreme Court for over a century has affirmed detention as a “constitutionally valid aspect of the deportation process.” Demore, 538 U.S. at 523 (listing cases).
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Plaintiffs make an artificial and distorted false choice by arguing that the Court must choose between immediate release of Plaintiffs, and all others similarly situated, or stand by idly while they all contract COVID-19. Plaintiffs fail to address the impact such release would have on the public’s interests.
There is potential adverse impact on society if a TRO is granted. First, granting a TRO for the putative class without examining the facts of each individual class member’s underlying health issues, if any, or their propensity for violence and/or flight, would potentially release persons who in some cases Congress has prohibited from release. It would also result in the release of persons who do not require release and/or who pose a risk of harm and/or flight. A deliberative procedure, before an Immigration Judge typically, has resulted in a determination that the class members must be detained. Where such a determination was not made, it was likely because the INA mandated the detainees detention – for example, if the individual has obtained certain criminal convictions, detention is mandated under 8 U.S.C. § 1226(c), or if the individual has a final order of removal, detention is required for a period of at least 90 days under 8 U.S.C. § 1231(a)(2) to allow ICE to effectuate the removal order. Disrupting the statutory scheme would adversely impact society by releasing individuals with significant criminal records and would cast aside lawfully issued orders by Immigration Judges and the Board of Immigration Appeals. Creating a precedent that all incarcerated individuals could use to demand release without any individual analysis of their circumstances would certainly adversely impact society. And that is precisely what the breadth of Plaintiffs’ claims could do.
F. The Balance of the Equities Favors Defendants It is well-settled that the public interest in enforcement of United States immigration laws is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s
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House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”); see also Nken v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal marks omitted)).
In keeping with their reductionist approach, Plaintiffs give short shift to this portion of the test for issuing emergency relief. In essence, they appear to posit that nothing could justify exposing Plaintiffs to the near-certain risk of contracting COVID-19. As stated, the risk has not been shown to be greater than that facing Plaintiffs if they are in the general population. Plaintiffs’ speculation notwithstanding, at the present time there are no confirmed cases of COVID-19 in the inmate, detainee or prison staff population at BCHOC.
Plaintiffs rely on two propositions, one which is certainly true and the other very much unproven. First, Plaintiffs state that the COVID-19 virus poses significant risk. This is true, but it does not apply specially to Plaintiffs or the purported class. Second, Plaintiffs claim that they will surely get infected with COVID-19 if they remain detained (and, implicitly, that they will not get infected if released). As argued above, this is a doubtful conclusion.
What Plaintiffs do not address is Defendants’ interests in keeping them detained. First among these is that both of the named Plaintiffs were found by a judge to pose a significant risk to the community if they were released. Plaintiff Celimen Savino has at least nine arraignments in Massachusetts since 2008 as a result of eleven arrests, including seven arrests for aggravated assault and multiple arrests for violating the restraining order initiated against her by her husband. See Exhibit 3 hereto. She threatened him repeatedly with violence. Id. She admitted
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that she has anger management and control issues during her bond hearing by an immigration judge. Id. She has been ordered removed from the United States by an immigration judge and the Board of Immigration Appeals affirmed this removal order. Id. This is not a person that can be expected to comply with any conditions of release, since she has repeatedly violated restraining orders and faces removal to her home country if her petition for review is unsuccessful.
Named Plaintiff Medeiros Neves refused to comply with officers’ orders to put his vehicle in park and get out of his car when they encountered him in an obviously inebriated state. See Exhibit 4 hereto. Instead, he placed the transmission in reverse and as a consequence, the car rolled onto one of the officer’s legs. Id. He resisted arrest once out of the car. Id. An immigration judge found that Medeiros Neves posed too great a risk to the community to be released on bond. The Defendants have an interest, and society at large has an interest, in protecting the community from immigration detainees, such as both named Plaintiffs, who pose a risk of violence to the community.
Moreover, as argued above, Celimen Savino and many other ICE detainees are in detention awaiting effectuation of their final orders of removal after their immigration cases were heard by immigration judges and the Board of Immigration Appeals.9 There is a strong policy interest in maintaining the structure put in place by Congress for dealing with persons subject to removal from this country. Congress has expressed in clear terms that the courts are not to interfere with final orders of removal. See 8 U.S.C. §§ 1252(d), (e). Even if this Court had the power to do so, and it does not absent a finding that the statute is unconstitutional, carving out a
9 ICE estimates that approximately one-third of all current BCHOC immigration detainees are subject to mandatory statutory detention.
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COVID-19 exception to the INA would impinge on society’s interest in an orderly application of its laws as well as according respect to a co-equal branch of government’s determination in making those laws. It is often said that bad facts make for bad law. The COVID-19 pandemic certainly constitutes “bad,” or very challenging, facts. We should not lose sight of the principle that we are a nation of laws, even if in challenging times.
Moreover, Plaintiffs’ alleged injury—a heightened risk for serious consequences from COVID-19—is not redressable by release. “Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.). For purposes of standing, a plaintiff’s injury is redressable where there is “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). Plaintiffs’ desired relief—release from detention—will not ameliorate or diminish their claimed heightened risk of injury or death resulting from COVID19, nor can a court order requiring release prevent Plaintiffs from contracting COVID-19.
Notably, Plaintiffs do not explain how release from BCHOC, a facility without a single confirmed case of COVID-19, into the greater Boston area, one of the “hot spots” of America’s COVID-19 crisis, will reduce their risk of injury or death.
Plaintiffs’ petition for habeas relief seeking immediate release is inappropriate in the context of a conditions of confinement claim. “[T]he writ of habeas corpus is limited to attacks upon the legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979). In Crawford, the Ninth Circuit held that “release from confinement” was not the appropriate remedy to address the petitioner’s claims “alleg[ing] that the terms and conditions of [petitioner’s] incarceration constitute[d] cruel and unusual punishment” and “violated his due
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process rights.” Id. at 891-92. Such a claim must be brought as a civil rights claim, Dohner v.
Seifert, 5 F.3d 535 (9th Cir. 1993), that if proven, would be remedied by “a judicially mandated
change in conditions and/or an award of damages.” Crawford, 599 F.2d at 892.
Thus, because Plaintiffs do not assert any illegality or impermissible duration of
confinement, Plaintiffs’ petition for habeas relief seeking immediate release is inappropriate in
the context of their conditions of confinement claim.
IV. CONCLUSION
The risk presented to all aspects of our society by the COVID-19 virus is very serious.
ICE and the Bristol County Sheriff’s Office are taking the risk very seriously. The relief sought
by Plaintiffs is not the right response.
For all the foregoing reasons, the Defendants respectfully request that the motion for a
temporary restraining order and for class certification be denied. In light of the extremely short
time period in which the Defendants have had to respond, they request an opportunity to further
brief the issues should the Court be inclined to do anything other than deny the motions.
Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov michael.sady@usdoj.gov
March 30, 2020
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CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: February 30, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

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AFFIDAVIT OF SHERIFF THOMAS M. HODGSON
Now comes Sheriff Thomas M. Hodgson, duly sworn and under oath and says and deposes as follows:
1. I am the Sheriff of Bristol County. Prior to coming to Massachusetts, I was employed as a Detective with the Ocean City Police Department in the State of Maryland. On arriving in Massachusetts I assumed the position of head of the enforcement division of the Bristol County Sheriffs Office and in 1997 I became Sheriff of Bristol County and have served in that office to date. I am currently the longest serving Sheriff in the Commonwealth.
2. The primary mission of the Sheriffs Office (BCSO) is the safety and security of the people of Bristol County which includes the security, health and welfare of both inmates and detainees as well as the correction officers and support staff working at the several facilities run by the department—the Dartmouth House of Corrections, the Ash Street Jail and the C. Carlos Carreiro Immigration Detention Center.
3. The health care of our inmates and detainees is now and since 2009 has been administered by Correctional Psychiatric Services, Inc. (CPS) under the direct supervision of Jose Veliz, M.D and Medical Director Nicholas Rencricca, MD, both of who have combined correctional experience of over 50 years. CPS medical personnel are continually on site 24/7 at both of our facilities to address, manage and treat any and all medical issues arising from the inmate/detainee population. Medical issues that require the attention of medical specialists or hospitalization are immediately transported to such facilities. Bristol County is fortunate to have access to three well respected hospitals in the area, St. Luke's Hospital, Chariton Memorial Hospital and Morton Hospital, all within a few minutes distance by transport or ambulance. CPS has relationships with specialty local community providers many of which are located on Faunce Corner Road to address any conditions requiring a specialist i.e. eye care, orthopedic, imaging, dermatology, OBGYN, Oncology, Neurology, ENT, and many more which are utilized on a routine basis. These providers are critical for the inmates who have these conditions and provide for continuity of care when needed upon the inmate's release from custody. Specialty clinics at the Shattuck Hospital are also utilized when needed. BCSO has successfully managed inmates with kidney failure, cancer, infectious disease issues and inmates who have chronic illnesses. BCSO also has the ability to utilize telehealth with community providers as well as CPS onsite providers.
4. The BCSO is currently and has for many years been certified by the following nationally recognized entities:
American Corrections Association National Commission for Corrections Health Care Certified in compliance with the federal Prison Rape Elimination Act (PREA)
1

Case 1:20-cv-10617-WGY Document 26-1 Filed 03/30/20 Page 2 of 5
5. With the onset of the appearance of COVID- 19, in conjunction and consultation with the Massachusetts Department of Public Health, the CDC and other public health agencies and correctional institutions, CPS and the BCSO have instituted strict protocols to keep inmates, detainees and staff safe and take all prudent measures to prevent exposure to the COVID- 19 infection.
6. Since February, the following measures have been undertaken:
a. All inmate/detainee visitation, with the sole exception of attorney and clergy visitation, has been cancelled until further notice. Prior to the COVID- 19 crisis, all inmate/detainee visitations, with the exception of attorney visits, had been noncontact.
b. During the crisis all prisoners are permitted two free telephone calls per week added to their regular allotment.
c. Volunteer assisted programs have been suspended but program material continue to be available to those incarcerated.
d. Attorneys and clergy, who visit as well as all BCSO staff, are medically screened prior to entrance by questions relating to COVID-19 symptoms and by body temperature assessment.
e Inmates who are admitted to custody are medically screened by CPS staff prior to being admitted to the general population with the intake area and holding cells being continually sanitized. Protocol requires that any admission suspected of having contracted COVID- 19 is provided a PPE mask, placed in isolation for 14 days and continually monitored for symptoms and followed continually by CPS medical personnel as well as the Mental Health Department.
f. All housing units are sanitized no less than three times per day. Fresh air is constantly circulated by opening windows and utilizing handler/vents throughout the day. All feeding is done inside the housing or cells and inmates do not congregate for meals in the main dining hall. Outside recreation is done as usual daily except that it is now done on split schedule to prevent close inmate-toinmate contact.
g. Medical pass and normal sick call procedures continue to run as normal with added scrutiny of both CPS medial staff and correction officers on alert for any prisoner experiencing or complaining of symptoms consistent with COVID-19 illness. In conjunction with community standards, Providers in the Health Services Unit are seeing inmates with emergent issues only in order to minimize the possibility of contamination and spread of the disease and to provide containment. Medical continues to evaluate and adjust its operations in conjunction with circumstances as they arise and with the guidance provided by CDC and DPH.
2

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h. CPS medical personnel at the BCSO consist of nursing staff composed of RNs and LPNs 24/7. At least two nurse practitioners are on site Monday-Friday. The Medical Director of the BCSO is Dr. Rencricca is available 24/7 by telehealth. Outside medical providers are on call 24/7 if needed and medical assistants are on site 40 hours per week. Mental Health clinicians are site Monday through Saturday and also on Sunday if there any 1:1 eyeball watches. At other times Mental health clinicians on call 24/7. All mental health evaluations and sick slips are current.
i. Sick slips that are submitted either by ICE detainees or other prisoners are seen within 24 hours by either a nurse or mental health clinician depending on the circumstances. Since the COVID-19 emergency sick slips are picked up twice per day for medical triage. Medical has identified all inmates/detainees who are at high risk, i.e. older than 60 years and/or have chronic conditions making them more susceptible to C OVID- 19. Inmates/detainees are seen immediately if they either present with symptoms or ask to be seen believing they have symptoms.
J. All inmate treatment and educational programs, mental health services including evaluations, assessments and therapies, detoxification, behavioral modification programs and therapies for acute and chronic illnesses are carried on as normal with the exception of groups meeting and utilizing the social distance precautions.
k. All inmates and detainees who have chronic illnesses which would make them immune-compromised or who are over sixty years of age are being specially monitored by officers and health personnel for the development of any symptoms consistent with COVID- 19. CPS is continually monitoring the on-site situation and developing emergency plans for cohorting high risk inmates.
1. Staff and inmates have been educated as to proper sanitary procedure, including repeated hand washing, and social distancing and hand sanitizers as well as soap and water are readily available to all inmates and staff.
m. For those inmates nearing end of sentence, an extensive re-entry program continues to operate normally insuring that each inmate scheduled for release into the community has in place proper housing and the continuity of medical care.
n. Normal schedules are maintained with the bail magistrates and unless ordered by the court, appearances with courts are performed via video-conferencing and telephone. Prior to every proceeding a prisoner is afforded telephone access to his or her attorney. Some Regional Lock-up and pre-trial detainees have been released by the courts either on personal recognizance or on GPS bracelets. Additionally, when the district attorney and the defendant's counsel have agreed on a disposition, the courts have undertaken the practice of faxing a "disposition form" to the BCSO and the defendant is able to undergo a colloquy with the court by tele-conferencing, sign the form at the BCSO and often be released on the spot.
3

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o. Specific to ICE detainees, the BCSO currently houses 148 detainees, 8 of who are female. 92 Detainees are housed in a separate ICE detention facility on campus and the rest (including females) are housed with pre-trial detainees in specific housing units as per ICE guidelines. The housing areas for all ICE detainees are cleansed with disinfectant cleaners every shift which include Virex and 409/Lysol. Also a hydrostatic spray cleaner on the third shift and as needed in high traffic area. Hand sanitizer units are outside the doors of each unit and detainees are permitted gloves and cleaner if they want to do extra cleaning in their own cells and bunks. Our detainees do not come from the outside but rather from other ICE facilities so quarantine is not recommended. We had one instance, however, where 16 detainees were brought into the facility and the transporting deputy from New Hampshire reported symptoms after she left the facility. All 16, as per regular procedure, had their temperature and vitals taken by medical staff and were asked COVID- 19 screening questions. After we received word of this possible illness with that deputy we quarantined all 16 detainees in single cells, provided them with masks, and had medical see them daily, checking temperature (for several days until the deputy's test came back negative.
p. Attorney visits for ICE detainees in the ICE detention facility are non-contact but attorneys may have contact visits by request. If a contact visit request is made, the detainee is taken to the main facility for the attorney visit. Attorney visits are contact for the other units. For contact visits attorneys are screened by temperature and questionnaire before entering.
q. The BCSO did not receive what the Plaintiffs describe as letter #1, which Plaintiffs appear to have sent directly to the media, but did receive letter #2. In response, BCSO held a unit meeting with all detainees to discuss their concerns and addressed maintenance concerns, added one more outside recreation period. Although not a maintenance issue, we also increased air circulation by opening the outside doors and by increasing the cycling of air through the air handlers. All memos from the Sheriff concerning restrictions and pre-screenings and attorney visits and regular visits were translated into Spanish and Portuguese. The two officers that the Plaintiffs expressed concern over did call out sick for several days but did not have the COVID-19 virus and have since returned to full duty.
7. At present no inmate, detainee or staff member has tested positive for COVID-19. Our medical provider has assured us that we have on hand the appropriate PPEs and other equipment to meet our needs to combat COVID- 19 and protect health care workers and other staff.
8. For over the twenty-three years that I have been Sheriff, the BCSO has safely and efficiently managed several pandemics including the H1N1 and SARS viruses as well as the HIV and Hepatitis C explosion in the community.
4

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9. Contrary to the allegations contained in the Plaintiff's Petition and expert affidavits, the BCSO penal facilities are not over-capacity nor have we been running over capacity for several years. The BCSO facilities were certified for a capacity of 1638 persons and as of March 24, 2020 our population is 931, which translates into 57% capacity. Our historical breakdown is attached as Appendix "A." 92 of the ICE detainees are housed in a separate building which has a certified capacity of 132 and thus is only at 70% capacity.
10. The initiation of our CO VOID- 19 preventative measures have been received well by the inmate population who have expressed their understanding as to the measures taken and have been cooperative.
11. It is my opinion based on a lifetime of law enforcement experience and over 23 years of experience in managing correction facilities that if inmates are released into the community pre-maturely without the necessary re-entry planning being in place that: a. Many will become homeless and place themselves and their communities at great risk of contracting COVID- 19; b. Many will not have access to proper medical care including mental health care and medication; c. Many who are or have been addicted to substances will relapse and become victims of overdose. d. Many will likely re-offend and place local police at risk with re-apprehension. e. Those having to be readmitted to prison after re-apprehension will place the prisons at greater risk of introducing COVID- 19. f. Many of those released inmates without medical support will flood local emergency rooms that are already overburdened.
Signed under penalty of perjury this 29th day of March 2020
5

Case 1:20-cv-10617-WGY Document 26-2 Filed 03/30/20 Page 1 of 6

E11forceme111 011d Remornl Operations
U.S. Dcpal'tmcn t of H omeland Security 500 12th Street. SW Washington. Dre. 20536

U.S. Immigration and Customs
Enforcement

March 27, 2020

MEMORANDUM FOR: Detention Wardens and S uperintendents

THROUGH: FROM:

F ield Office Directors
Enrique M. Lucero Executive Associate Directo r Enfo rcement and Remova l Operations

SUBJECT:

Memorandum on Coronav irus Disease 2019 (COVID-19) Action Plan, Revision I

Backaround:
U.S. Immigration and Cus toms Enforcement (I CE) continues to monitor the spread of Coronavirus Disease 2019 (COVID-1 9) and to work in conjunction with select U.S. Depaiiment of Homeland Security (DHS) Component leadership and the Acting Secretary to implement a mitigation strategy.
To ensure a unified and preventative response, the ICE Enforcement and Removal Operations (ERO), ICE Health Service Corps (IHSC), Custody Management Division, and Field Operations are providing the following guidance. The combinati on of a dense and highly transient detained population presents unique challenges for ICE efforts to mitigate the risk of infectio n and transm ission. Consequently, these measures were developed to reduce exposure to COVID- 19, protect the deta ined population, and optim ize employee hea lth and availability fo r duty.
This memorandum o nly applies to TH SC-staffed and non-I 1--JSC-s taffed , ICE-dedicated
facilities. For intergovernmental partners and non-dedicated fac ili ties, ICE defers to local, state, tribal, territorial, and federa l public health policies and authoriti es, including adherence with state laws o n communicab le disease reporting, but recommends actions contained in this memorandum be considered as best practices. Questions and concerns related to the fo llowing Action Plan can be addressed to: ICE ERO CMD(@ice.dhs.gov.
Please see the recently-issued Centers for Disease Control and Prevention (CDC) Interim Guidance: Mana!!.in!! COVID- 19 in Correctional/ Detention Facilities for add itional information.

Case 1:20-cv-10617-WGY Document 26-2 Filed 03/30/20 Page 2 of 6 Memorandum on Coronavirus Disease 2019 (COVID-19) Action Plan, Revision 1 Page2
Action Plan:
STAFF HIRING: Wardens and facility staff should continue to meet any personnel staffing plan and staffing criteria outlined in the Performance Work Statement (PWS) and terms and conditions oftheir negotiated contract or agreement for medical staff and guard services. Facilities are expected to be appropriately staffed to meet established work schedules, rest periods, and to ensure the delivery of detainee medical and mental health care as it relates to the continually evolving impact ofCOVID-19.
LOGISTICS: Wardens and Facility Administrators should assess their inventories of food, medicine, cleaning supplies, personal protective equipment (PPE), and facility operational practices, and consistently maintain services and supplies to assure the safety, security, health, and well-being ofICE detainees. Facilities should have updated pandemic plans and policies as well as established quarantine and/or isolation areas within their facilities in the event they are needed. Alcohol-based hand sanitizer with at least 60 percent alcohol should be available in visitor entrances, exits, and waiting areas. In addition, alcohol-based hand sanitizer should be made available to staff and detainees in the secure setting to the maximum extent possible.
SOCIAL VISITATIONffELEPHONIC COMMUNICATION: As of March 13, 2020, social visits to/with ICE detainees at all detention facilities are suspended until further notice in order to mitigate the potential introduction of COVID-19 into the facilities. ICE recognizes the considerable impact of suspending personal visitation, and requests maximizing detainee use of teleconferencing, video visitation (e.g., Skype, FaceTime), email, and/or tablets, with extended hours where possible.
Detention facilities should make a timely effort to identify indigence in the detainee population. A detainee is considered "indigent" if he/she has less than $15.00 in his/her account for ten days. These detainees must be afforded the same telephone access and related privileges as other detainees. Each facility must ensure all detainees are able to make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party, and that indigent detainees may request a call to immediate family or others in personal or family emergencies or on an as-needed basis to maintain community ties.
LEGAL VISITS: Detainee access to legal representatives remains a paramount requirement and should be accommodated to the maximum extent practicable. Legal visitation must continue unless determined to pose a risk to the safety and security of the facility.
Non-contact legal visitation (e.g., Skype or teleconference) should be offered first to limit exposure to ICE detainees, but in person contact should be permitted if determined essential by the legal representative. Prior to the in-person visit, the legal representative must undergo the same screening required for staff entry into the facility. The ultimate legal visit approving authority lies with the Warden or Facility Administrator; however, the facility should notify its local Field Office Director as soon as possible of any denied legal visits.
LEGAL RIGHTS GROUP PRESENTATIONS: Government-sponsored Legal Orientation Programs (LOPs), carried out by the Department of Justice Executive Office for Immigration Review (EOIR) and authorized by congressional appropriations, currently operate at a limited

Case 1:20-cv-10617-WGY Document 26-2 Filed 03/30/20 Page 3 of 6
Memorandum on Coronavirus Disease 2019 (COVID-19) Action Plan, Revision I Page 3
number of detention sites, and may continue to conduct detainee presentations. No more than
four LOP presenters may be allowed in the facility at any time and must undergo the same screening required for staff entry into the facility. Non-LOP legal rights group presentations offered by volunteers are suspended until further notice.
STAFF-DETAINEE COMMUNICATION VISITS: Field Office Directors should remain aware that detainees may experience increased feelings of fear and confusion during this time. Regular communication with staff is particularly important. Detainees should have frequent opportunities for informal contact with facility managerial and supervisory staff and with ERO field office staff.
Field Office Directors should monitor both facility staff and ERO officers to ensure they continue to interact with detainees. ICE staff-detainee communication may be conducted inperson (with appropriate risk reduction protocols to protect ERO officers, detainees, and facility staff) or through non-contact visitation using videoconferencing, phone calls, e-mail, or other communication services.
CONTRACTORS: Contractors performing essential services or maintenance on essential systems in ICE detention facilities must continue to be provided facility access and must undergo the same screening required for staff entry into the facility. Examples of essential services include medical and mental health services, telephone access, cleaning, laundry, waste disposal, and critical infrastructure repairs.
Facility annual inspections by the ICE inspections contractor, The Nakamoto Group, are suspended for 30 days from the issuance date of this memorandum.
VOLUNTEERS: Volunteer visits to ICE detention facilities are suspended until further notice unless approved by the Assistant Directors for Field Operations and Custody Management. The only exception is the facility Chaplain, who may continue to offer availability for individual and group pastoral care but must undergo the same screening required for staff entry into the facility. Other volunteers, contractors, and community groups that augment and enhance the religious program are suspended until further notice to reduce the risk of possible transmission of COVID-19 to detainees.
TOURS: Facility tours are suspended until further notice, excluding Members of Congress, Congressional Member Delegations (CODELs), and Congressional Staff Delegations (STAFFDELs) who will not be prevented from accessing facilities for the purpose of conducting oversight. To safeguard visitors, detainees, ICE and facility staff, congressional visitors may be subject to special screening procedures congruent with staff facility entry screening. Congressional visitors should be advised of standard hygiene practices to help prevent the spread of disease (i.e., washing hands, avoiding close contact) and should be made aware of available hand washing stations within the facility.
STAFF TRAINING: All ERO in-person staff training related to the ICE detention standards or facility compliance is suspended until further notice, including conferences, Contracting Officer Representative (COR) training, and Field Office Compliance Training. Wardens and Facility Administrators will determine the training schedule for facility staff. All staff licenses and certifications shall be maintained.

Case 1:20-cv-10617-WGY Document 26-2 Filed 03/30/20 Page 4 of 6 Memorandum on Coronavirus Disease 20 19 (COVID -19) Action Plan, R evis ion I
Page 4
SCREENING OF FACILITY STAFF: E nhanced health screeni ng of both ICE and facil ity staff shou ld be implemented by ICE detentio n facilities in geographic areas with "sustained community transmissio n." T hese geographical areas are determined by the CD C and infom,ation is available at:
r- https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html. Health screening includes sel
reporting symptoms associated with COVID-19 infection and a temperature check.
Wardens and Facility Administrators in those geographical areas s hould collaborate w ith their Health Services Ad mini strator to designate a trained s taff member available on all shifts to conduct verbal screening and record temperature checks. It is no t required that the trained staff member be medical personnel; however, the staff member must have documented training and protect the privacy of those being screened.
Verbal screening for symptoms of COV ID-1 9 and contact wi th COVID- 19 cases should include the following questions based on Interim Guidance: ManaginQ COVID-19 in Con-ectional/Detention Facilities:
• Today or in the past 24 hours, have you had any of the fo llowing symptoms? o Fever, felt feverish, or had chi ll s? o Cough? o Difficulty breathing?
• In the past 14 days, have you had contact w ith a person known to be infected w ith
COVID- 19 where you were not wearing the recommended proper persona l protective equipment (PPE)?
The following is a protoco l to safely check an individual's temperature: • Perform hand hygiene. • Put on a face mask, eye protection (goggles or disposable face sh ield that fully covers the front and sides of the face), gowns/coveralls, and a sing le pair of disposable g loves. • Check the individual 's temperature.
• If performing a temperature check on multiple indiv iduals, ens ure that a clean pair of
g loves is used for each indiv idual and that the thermometer has been thoroughly c leaned in behveen each check.
• l r disposable or non-contact thermometers are used and the screener did not have
physica l contact with an individual, gloves do not need to be changed before the next check. ff non-contact thermometers are used, they shou ld be cleaned routinely as recommended by CDC fo r infection control. • Remove and discard PPE. • Perform hand hygiene .
Staff who do not clear the screen ing process, or refuse the enhanced health screening must be denied entry and advised to fo llow CDC-recommended steps fo r persons who arc sick with COVID-19 symptoms.
If PPE supply is limited, consider other PPE strategies based on CDC Guidance I Strategies
for Optimizing the Supply of PPE.

Case 1:20-cv-10617-WGY Document 26-2 Filed 03/30/20 Page 5 of 6
Memorandum on Coronavirus Disease 2019 (COVID-19) Action Plan, Revision I Page 5
If staff register a temperature greater than or equal to 100.4 degrees (Fahrenheit), they should be denied entry to the facility and placed on leave per the employer's administrative policies.
DETAINEE SCREENING: IHSC developed guidance for IHSC-staffed facilities to assist in the risk assessment and management of detained individuals with potential exposure to COVID-19, and guidance was disseminated to non IHSC-staffed ICE detention facilities for potential adoption of this guidance at their respective sites. This guidance addresses intake medical screenings, monitoring, encounters, laboratory testing, and public health actions. The CDC remains the authoritative source for information on how to protect individuals and reduce exposure to COVID-19. ICE continues to encourage facilities to follow CDC guidelines and those of their state and local health departments for non IHSC-staffed ICE detention facilities.
ICE requests that Wardens and Facility Administrators ensure ICE detainees are provided guidance and education in a language that they fully comprehend regarding basic hygiene and measures to maintain health. Links for detainee/patient education resources, in a variety of languages, are maintained in the IHSC guidance and information on the CDC website.
MODIFIED OPERATIONS: Wardens and Facility Administrators should implement modified operations to maximize social distancing in facilities, as much as practicable. For example, Wardens and Facility Administrators should consider staggered mealtimes and recreation times in order to limit congregate gatherings. All community service projects are suspended until further notice.
CONSIDERATIONS FOR DETAINEE RELEASE: Upon notification of a detainee's pending release, a qualified health care provider will conduct a temperature screening:
• Temperature checks will be completed no more than 12 hours prior to facility departure and documented in the detainee medical record and transfer summary.
• Temperature checks must be completed and documented prior to providing ICE with transfer summary documents.
When considering the release of detainees into the United States with confirmed or suspected COVID-19, the following must be addressed for detainees exposed to an individual with confirmed or suspected COVID-19 or detainees under monitoring for having epidemiologic risk of exposure to COVID-19:
• If the detainee will be released prior to completion of the recommended medical isolation, cohorting, or monitoring period, the state or local health department in the facility jurisdiction should be notified of the detainee's release: o The health department should be provided with the detainee's name, intended address, email address, and all available telephone numbers.
• Facilitate safe transport, continued shelter, and medical care, as part of release planning: o Provide information regarding any potential community resources to promote continuity of care. o Attempt to facilitate transportation coordination through a family or friend.

Case 1:20-cv-10617-WGY Document 26-2 Filed 03/30/20 Page 6 of 6 Memorandum on Corooavi rus Disease 2019 (COVID-19) Action Plan, Revision 1
Page 6
o Advise the detainee to avoid public transportation, commercial ride sharing (e.g., Uber, Lyft), and taxis.
• Provide the detainee the CDC's What To Do i(You Are Sick fact sheet.
If this guidance creates any contractual issues, please contact your respective Contracting Officer Representative.

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Case 1:20-cv-10617-WGY Document 26-4 Filed 03/30/20 Page 1 of 3

Departmental Report

AGENCY

Detail

INCIDENT #

Everett PD

750730

BEGIN DATE BEGIN TIME

END DATE

END TIME

11/19/2018 00:27:00

Division-Beat GRID

PRIORITY

STATUS

Unknown Un ..

STATUS NOTE

INCIDENT LOCATION

749 BROADWAY ST, EVERETT, MA 02149

PRIMARY OFFICER

159

MACGREGOR, JAMES W

[DJACKSON]

REPORT DATE REPORT TIME

11/19/2018

02:33:00

STATUS DATE

CRIME TYPE
SOURCE CRIME TYPE
INTOXICATED SUBJECT

CRIME TYPE Intoxication - Unspecified

RELATED OBJECTS
OBJECT
JUNIO, JULIO CESAR White Male Jun 3, 1985 JUNIO, JULIO CESAR White Male Jun 3, 1985

RELATION TYPE Relative
Relative

RELATED OBJECT CARMAN
JULIO

OFFICER HISTORY

BADGE # NAME

ACT/NOTE START DATE

159

MACGREGOR, JAMES W REPORT

89

SWINFORD, ERIC

REPORTING OFFICER ASSIST

ASSISTING OFFICER

END DATE

SHIFT/DATE

UNIT/STATION/RESPSTID EVERETT POLICE DEPA
EVERETT POLICE DEPA

PEOPLE
NAME/ADDRESS CARMAN NONE

ROLE/DOB AGE/RACE SEX/FLAG HAIR/EYES HT/WT Parent

LOCAL/SID/FBI

JULIO NONE

Parent

JUNIO, JULIO CESAR Suspect

33

M

White

EVERETT, MA 02149

/1985

(Black)

508

(Brown)

150

(MAPCF-5482518)

Case 1:20-cv-10617-WGY Document 26-4 Filed 03/30/20 Page 2 of 3

SWINFORD, ERIC J

Victim

45

M

White

, EVERETT, MA 02149

/1973

LOCATIONS
LOCATION EVERETT, MA 02149
EVERETT, MA 02149
EVERETT, MA 02149

PHONES

PHONE

617

97

NARRATIVES

600 220
ROLE Home Location Home Location Report Location
ROLE Unspecified Telephone Number

[DJACKSON]

Case 1:20-cv-10617-WGY Document 26-4 Filed 03/30/20 Page 3 of 3

TEXT

ON MONDAY, NOVEMBER 19, 2018, I, OFFICER MACGREGOR, WAS ASSIGNED TO THE 147 N ALONG WITH MY PARTNER OFFICER SWINFORD. AT APPROXIMATELY 0030 HOURS, WE RESPON DED TO OLIVEIRA'S RESTAURANT FOR THE REPORT OF AN INTOXICATED MALE ATTEMPTING TO DRIVE HIS VEHICLE, BUT PATRONS WERE PREVENTING HIM FROM DOING SO. UPON AR RIVAL, LIEUTENANT DITRAPANO WAS ON SCENE SPEAKING TO THE MAN AS WELL AS PATRONS AND STAFF FROM OLIVEIRA'S. THE MAN, LATER IDENTIFIED AS JULIO JUNIO, APPEARED UN STEADY ON HIS FEET AND HAD AN ODOR OF AN ALCOHOLIC BEVERAGE ON HIS BREATH. OLIVE IRA'S STAFF STATED THAT HE LEFT THE RESTAURANT AND APPEARED TOO INTOXICATED TO D RIVE. THIS IS WHEN PATRONS PREVENTED HIM FROM GETTING INTO HIS MOTOR VEHICLE. MR JUNIO WAS ASKED FOR HIS IDENTIFICATION, TO WHICH HE PRODUCED A NEVADA ID. A CHE CK THROUGH DISPATCH SHOWED THAT MR JUNIO HAD A MASS ID ONLY (NO DRIVER'S LICENSE ) AND A NEVADA ID (NO DRIVER'S LICENSE). WE INFORMED MR JUNIO THAT NOT ONLY COUL D HE NOT DRIVE HIS VEHICLE BECAUSE HE APPEARED IMPAIRED, BUT HE HAD NO RIGHT TO OPERATE A MOTOR VEHICLE WHATSOEVER AS HE IS NOT PROPERLY LICENSED. WE ALLO WED MR JUNIO TO WALK HOME AS HE WAS ONLY GOING SEVERAL BLOCKS (17 WEBSTER STREET ). WE WATCHED AS HE WALKED UP BROADWAY APPROXIMATELY 100 YARDS, THEN HE ABRUPTLY TOOK A LEFT ON FERRY STREET. HE WAS BRISKLY WALKING TOWARDS THE WALGREENS PARKI NG LOT. OFFICER SWINFORD AND I DROVE AROUND THE BACKSIDE OF THE LOT VIA SYCAMORE STREET. JUST AS WE TURNED INTO THE LOT, WE OBSERVED A SILVER FORD FUSION (MA 5P Y617) BEING OPERATED BY MR JUNIO, HEADED TOWARDS THE FERRY STREET EXIT OF THE LO T. KNOWING MR JUNIO'S CURRENT STATE, AND THE IMMEDIATE THREAT HE PRESENTED TO TH E PUBLIC IF HE WAS ALLOWED TO OPERATE A MOTOR VEHICLE, WE ACTIVATED OUR BLUE LIG HTS AND PULLED IN FRONT OF HIM TO BLOCK HIS EXIT. I APPROACHED HIS WINDOW AND ORDERED HIM TO PUT THE VEHICLE INTO PARK AND EXIT THE CAR. HE APPEARED TO BE PLACING THE SHIFTER INTO PARK, BUT MADE NO EFFORT TO OPEN THE DOOR AND EXIT THE VEHICLE. AT THIS TIME, I OPENED HIS DOOR, HE STILL REFUSED TO EXIT, THEREFORE I , NOW JOINED BY OFFICER SWINFORD, HAD TO PHYSICALLY PULL HIM FROM THE VEHICLE. A S WE PULLED HIM FROM THE AUTOMOBILE, HE FELL FORWARD, SCRAPING HIS FACE AGAINST THE GROUND. NOW HE WOULD NOT SUBMIT TO BEING HANDCUFFED AND IGNORED OUR ORDERS T O IMMEDIATELY PLACE HIS HANDS BEHIND HIS BACK. IT WAS AT THIS TIME, THAT HIS VEH ICLE BEGAN ROLLING BACKWARDS. MR JUNIO HAD NOT PLACED HIS VEHICLE IN PARK WHEN O RDERED TO, BUT INSTEAD PUT IT IN REVERSE, IN WHAT I RETROSPECTIVELY BELIEVE WAS GOING TO BE AN ATTEMPT TO FLEE. AS THE VEHICLE ROLLED BACKWARDS, THE DOOR OF THE VEHICLE PINNED OFFICER SWINFORD'S LEG BETWEEN MR JUNIO ON THE GROUND AND THE OP EN DOOR. AS IT CONTINUED TO ROLL, I HEARD OFFICER SWINFORD BEGIN TO YELL IN PAIN . I IMMEDIATELY LEFT MR JUNIO AND GOT INTO THE DRIVER'S SEAT OF THE VEHICLE AND PLACED IT IN PARK. OFFICER SWINFORD YELLED FOR ME TO PULL FORWARD, WHICH I IMMED IATELY DID, THIS NOW FREED HIS LEG. I NOW EXITED THE VEHICLE AND COULD SEE OFFIC ER SWINFORD FIGHTING IN AN EFFORT TO STAND. HE WAS STILL ATTEMPTING TO ENGAGE MR JUNIO, BUT WAS STIFLED FROM THE PAIN OF HIS INJURY. I THEN FINALLY PLACE D MR JUNIO INTO HANDCUFFS AND IMMEDIATELY CALLED FOR CATALDO TO RESPOND TO WALGR EENS PARKING LOT AND ALSO FOR A PATROL SUPERVISOR TO RESPOND. SEVERAL UNITS AND LIEUTENANT DITRAPANO ARRIVED ON SCENE. CATALDO ARRIVED SOON THERE AFTER. OFFICER SWINFORD WAS TRANSPORTED TO MASS GENERAL HOSPITAL FOR EVALUATION. MR JUNI O WAS SEARCHED AND TRANSPORTED TO HEADQUARTERS BY OFFICER HURLEY (150). HE WAS B OOKED BY LIEUTENANT CRISTIANO AND CHARGED WITH OUI LIQUOR WITH SERIOUS INJURY, U NLICENSED OPERATION OF A MOTOR VEHICLE, AND RESISTING ARREST. HE WAS NOT GIVEN F IELD SOBRIETY ON SCENE DUE TO THE CIRCUMSTANCES OF HIS ARREST, BUT CONSENTING TO A BREATHALYZER TEST AT HEADQUARTERS, TO WHICH HE BLEW A .15%. CITATION T1290361 . MR JUNIO'S VEHICLE WAS TOWED AND A TOW FORM WAS COMPLETED. ONCE A T THE STATION, MR JUNIO WAS OBSERVED TO HAVE AN ABRASION ON HIS LEFT CHEEK FROM THE INCIDENT. CATALDO RESPONDED TO THE STATION AND MEDICALLY CLEARED HIM, HE SIG NED A REFUSAL. RESPECTFULLY SUBMITTED, OFFICER JAMES MACGREGOR

[DJACKSON]

 
 Case 1:20-cv-10617-WGY Document 225 Filed 06/18/20 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Plaintiffs-Petitioners, )

)

v.

)

)

STEVEN J. SOUZA, Superintendent of )

Bristol County House of Correction )

in his official capacity,

)

)

Defendant-Respondent. )

)

CIVIL ACTION NO. 20-10617-WGY

YOUNG, D.J.

June 18, 2020

MEMORANDUM

I. INTRODUCTION

This memorandum sets the record straight. First, it

reiterates the Court’s questions, raised in hearings held on

June 3 and 15, as to which counsel for respondent (“the

government”) requested further clarification. Second, the Court

takes this opportunity briefly to explain why, at the June 3

hearing, the Court denied the government’s motion for

reconsideration of the preliminary injunction (“Mot. Recon.”),

ECF No. 185, and forthrightly to “address the [government’s]

argument that the preliminary injunction decision was

incorrect,” Obj. Recharacterization 1, ECF No. 200.

Case 1:20-cv-10617-WGY Document 225 Filed 06/18/20 Page 2 of 12
II. THE COURT’S TWO QUESTIONS At hearings held via videoconference on June 3 and 15,
2020, the Court asked the government whether it was complying with two procedures set by the Centers for Disease Control and Prevention (“CDC”) and U.S. Immigration and Customs Enforcement (“ICE”). The government provided no clear answer at the first hearing and requested clarification at the second, which the Court now provides. Both of these issues were flagged by the Court in its preliminary injunction opinion, issued on May 12, 2020. See Savino v. Souza, __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 2404923, at *6 (D. Mass. May 12, 2020).
First, has the government been complying, throughout this litigation, with the CDC’s guidance that staff who are “close contacts” of individuals who have tested positive for COVID-19 must self-quarantine at home for 14 days? This guidance, stated on page 12 of the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC’s Interim Guidance”) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf, reads in relevant part: “If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-
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quarantine at home for 14 days and return to work if symptoms do not develop” (emphasis in original).1
Second, (a) has the government been complying with ICE’s requirement that detention facility staff must “[n]otify both the ERO Field Office Director (or designee) and Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19,” ICE, Enforcement and Removal Operations (ERO), COVID-19 Pandemic Response Requirements 6 (Apr. 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCle anFacilities.pdf; and (b) has ICE been “review[ing] the case[es] to determine whether continued detention is appropriate,” making “such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated,” id. at 14? At the June 15 hearing, the Court overstated ICE’s commitment by suggesting that “hearings” were required; in fact, ICE has committed itself only to “review” the cases, with or without a
1 A person is defined as a “close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on).” CDC’s Interim Guidance 3.
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hearing. That being so, the Court inquires whether, throughout this litigation, this notification-and-review procedure has been carried out as ICE’s policy requires.
The Court also underscores a question it asked during the June 15 hearing seeking to clarify the large discrepancy between the parties’ lists of medically vulnerable detainees (under the CDC guidelines) currently held at Bristol County House of Correction (BCHOC): the government has identified only ten such people, see ECF No. 212, while the petitioners count as many as thirty-three, see ECF No. 222. The CDC’s guidelines do not appear to be so vague as to allow such a wide discrepancy. III. THE LIKELIHOOD OF FINDING DELIBERATE INDIFFERENCE
In issuing a preliminary injunction in this case, the Court ruled that the petitioners had shown a likelihood of success on the merits, which would entail proving that the government exhibited “deliberate indifference to a substantial risk of serious harm” to the detainees’ health. Savino, 2020 WL 2404923, at *7 (quoting Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011)). The Court’s reasoning rested on three pillars: (1) the government’s refusal voluntarily to work toward reducing the population of the facility to a density in which social distancing would be possible; (2) the government’s failure to test any asymptomatic detainees or staff, notwithstanding the known risk of asymptomatic infection; and
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(3) the lack of adequate contact tracing, including the issue of “close contacts” discussed at the outset of this memorandum. See id. at *7-10. The government’s motion for reconsideration is principally an attack on each of these three pillars.
A. The Government’s Blanket Opposition to Bail The government makes the surprising argument that the Court’s description of the government’s “wholesale blockade on bail,” id. at *9, “is not a fair or accurate characterization.” Mot. Recon. 16. This is so, the government explains, because ICE’s formal opposition to release on bail by the Court of all but six detainees was only its position “for the record”; in practice, however, “fully half of those releases were with Defendants’ tacit approval.” Id. How was that tacit approval manifested? The government explains that, along with a general objection to all releases, it specifically highlighted a smaller “subset of detainees who should not be released.” Id. at 15. Thus, the government maintains, it partnered with the Court in a “collective process” of releasing detainees and deserves credit for many of the releases on bail. Id. at 25. This narrative is fanciful. There was no “tacit approval” or “collective process” of releases. Laboring hard and in good faith, counsel for the government helpfully singled out particular detainees as being especially unfit for bail in order to steer the Court away from those individuals. Yet that does
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not imply that the government agreed that others should be released, let alone worked toward that goal. It did not. At the end of the day the government’s position was uncompromising. It was also off the wall. To see why, it is useful to look at the big picture and the small one.
First the big picture. Social distancing is a “cornerstone” of COVID-19 prevention. CDC’s Interim Guidance 4. This was the major problem in BCHOC at the start of this litigation, since the detainees were indisputably sleeping and eating very close to one another. The government never argued that the full cohort of 148 BCHOC detainees could achieve effective social distancing.2 Instead, it chose to pretend that social distancing was not critical, repeatedly asserting that the facility was safe because the virus could somehow be kept outside -- even after numerous staff and one detainee tested positive. See Savino, 2020 WL 2404923, at *9. The government’s prevention strategy, as initially conceived and never disavowed, was essentially all Plan A and no Plan B. To borrow a driving
2 In support of its motion to stay further releases, the government did argue that, as of April 14 when 92 detainees were held at BCHOC, “appropriate six foot social distancing is fully achievable.” Defs.’ Mem. Supp. Mot. Stay Further Releases 9, ECF No. 83. The government also contended that the safe population number “is not 100 and it’s certainly not below 100.” Tr. Hr’g (Apr. 9, 2020) 20:7-8, ECF No. 148. The Court denied the motion to stay, since it could not yet “determine[e] the merits of this case” by settling on a safe number. ECF No. 86.
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analogy from the government,3 it is like a NASCAR driver who
spurns a seatbelt and helmet because she plans not to crash.
The government is still justifying its daredevil mindset,
recently explaining that it “had no reason to think that the
starting number [of detainees] was too high” and therefore it
“did not embrace the concept of population density reduction.”
Defs.’ Mem. Appropriate Level Detainee Population (“Population
Mem.”) 4-5 & n.4, ECF No. 214. (How this admission can be
squared with the government’s supposed “tacit approval” of bail
releases is anyone’s guess.) This is emphatically not a case in
which the government “has been working toward exactly what the
plaintiffs seek: a reduction in [the facility]’s population.”
Swain v. Junior, No. 20-11622, 2020 WL 3167628, at *10 (11th
Cir. June 15, 2020) (emphasis in original).4
3 The government likens the Court’s conduct to “getting in the driver’s seat, picking the destination and blaming the passengers for not driving the car.” Mot. Recon. 5. The better comparison, however, would be to a driver getting on the highway northbound and faulting the passenger for remarking at every exit, “I would get off here and go south.”
4 The government oddly states that even had there only been 74 detainees at the start of the litigation “the Court would likely have assumed that the starting number was too high.” Population Mem. 4. That’s a very strange thing to say. The Court has made clear in two written opinions and numerous hearings that the main problem is crowding in conditions that do not allow for social distancing. If there were only 74 detainees and they had adequate space, why would the Court have assumed that was unsafe? Cf. Baez v. Moniz, No. 20-10753-LTS, 2020 WL 2527865, at *8 (D. Mass. May 18, 2020) (Sorokin, J.) (rejecting Eighth Amendment claim regarding COVID-19 prevention for 70 detainees in shared cells or dorms when defendant
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Now the small picture. Andrea James, a 54-year-old grandmother with diabetes and hypertension, arrived in ICE custody after serving twenty years in prison for cocaine distribution in 1998. The government opposed bail because “ICE believes her to be a danger to the community.”5 Georgios Nikiforides is a 49-year-old electrician who has been in the U.S. since he was two years old. His criminal history consists of two convictions for assault, in 2002 and 2012, but he has since been awarded a full pardon. He has chronic obstructive pulmonary disease, with a recent history of hospitalization for pneumonia, as well as hypertension. ICE opposed his release because he “is a threat to public safety.”6 Other examples are the 54-year-old grandfather of two U.S. citizens whose sole nonimmigration offense is for shoplifting and the 57-year-old Walmart employee with hypertension whose only criminal history is immigration fraud. As Judge Chhabria found in similar circumstances, “ICE’s insistence on opposing these bail applications on a blanket basis has led it to take some positions that are downright irrational, not to mention
“offered diagrams and photographs demonstrating his efforts to ensure that all beds in such units have at least six feet of space between their heads”). As the government correctly observes, the Court has not yet made a determination regarding a safe population level at BCHOC.
5 Defs.’ Input Apr. 7 List, Ex. 1 at 1, ECF No. 50-1. 6 Defs.’ Input Apr. 8 List, Ex. 1 at 1, ECF No. 58-1.
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inhumane.” Zepeda Rivas v. Jennings, No. 20-cv-02731-VC, 2020 WL 3055449, at *2 (N.D. Cal. June 9, 2020).
B. Testing and Contact Tracing The other two pillars supporting the Court’s ruling of a likelihood of deliberate indifference were the inadequate testing and contact tracing at BCHOC. Regarding contact tracing, the government claims that “BCHOC was doing the same form of contact tracing done by most other Sheriffs’ Offices,” faults the Court for relying upon the “silence” of the record when it “never asked for evidence of the contact tracing,” and adds: “Nor was contact tracing the standard of care for correctional facilities at the outbreak of the litigation.” Mot. Recon. 24. These arguments are unpersuasive. Contact tracing absolutely was the standard of care for correctional facilities from the outset -- indeed, the CDC required self-quarantining for “close contacts” of COVID-19, as the Court observed in its prior opinion and has now reiterated in the first part of this memorandum. In any event, the Court properly looked beyond “the outbreak of the litigation” to the ongoing developments up to the date of the preliminary injunction. See Savino, 2020 WL 2404923, at *8 (citing Farmer v. Brennan, 511 U.S. 825, 846 (1994)). The silence of the record spoke volumes.
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The government also chides the Court for relying on the lack of testing for asymptomatic individuals since “no one was recommending widespread testing for asymptomatic persons before the end of April.” Mot. Recon. 18. The Court is aware and appreciates that COVID-19 tests were scarce through March and part of April, and that the expert recommendations have evolved during this litigation. For instance, the CDC now recommends, reflecting changes apparently made on June 13, “testing for asymptomatic individuals without known or suspected SARS-CoV-2 exposure for early identification in special settings,” such as in “correctional and detention facilities.”7
The preliminary injunction was issued on May 7. By then, strategic testing of at least some asymptomatic detainees and staff had become both necessary and feasible. In Massachusetts, “[o]n April 22, 2020, large-scale mobile testing became available to the [Department of Correction], and it began administering tests to any inmate or patient who voluntarily
7 CDC, Overview of Testing for SARS-CoV-2 (revised June 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/testingoverview.html (last accessed June 16, 2020). On May 11, at the White House’s official televised COVID-19 briefing, Admiral Brett Giroir stated “[r]ight now, in America, anybody who needs a test can get a test,” including for purposes of “contact tracing” and “asymptomatic surveillance” -- and he had earlier stated that this group “include[s] those who are in prisons.” White House, Remarks by President Trump in a Press Briefing on COVID-19 Testing (May 11, 2020), https://www.whitehouse.gov/briefings-statements/remarkspresident-trump-press-briefing-covid-19-testing/.
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agreed to be tested, facility by facility.” Foster v. Commissioner of Corr., 484 Mass. 698, 2020 WL 2844516, at *7 (Mass. June 2, 2020); see id. at *16 (declining to find deliberate indifference in part because “increasingly throughout the month of May, the DOC has begun widespread testing of nonsymptomatic inmates, as well as offering testing to all correction officers upon request”). On April 23, the Federal Bureau of Prisons (“BOP”) announced it had acquired rapid testing equipment which would be used, in part, to test “asymptomatic inmates” to “assist the slowing of transmission with isolating those individuals who test positive and quarantining contacts.”8 On April 27, the CDC, White House, and FDA released a “Testing Blueprint” recommending that “congregate living settings” should “actively” perform “sentinel monitoring,” which “involves targeted, voluntary testing of asymptomatic individuals.”9
By May 7, the government had been aware for several months that asymptomatic individuals can spread the virus. Clearly, some form of asymptomatic testing (not necessarily universal,
8 BOP, Bureau of Prisons Expands COVID-19 Testing (Apr. 23, 2020), https://www.bop.gov/resources/news/pdfs/20200423_press_release_c ovid19_testing.pdf.
9 White House, CDC & FDA, Testing Blueprint 3 & n.1 (Apr. 27, 2020), https://www.whitehouse.gov/wpcontent/uploads/2020/04/Testing-Blueprint.pdf.
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but something) should have been on the government’s radar and actively pursued. The record revealed no efforts or general strategy to test at least some asymptomatic detainees and staff.10 On May 1, the superintendent affirmed that BCHOC “is not doing asymptomatic testing.”11 IV. CONCLUSION
The government emphasizes “that BCHOC has a virtuallyperfect record of no confirmed positives among the detainee population” and that “[n]o one knows which steps, or what combination of measures, is responsible for the remarkable limit of COVID-19 among the ICE detainees.” Population Mem. 3. That is true. Yet, just as “the increased rate of infection” does not itself prove deliberate indifference, Swain, 2020 WL 3167628, at *7, the absence of known infections does not disprove deliberate indifference.
We are not yet out of the woods. SO ORDERED.
/s/ William G. Young____ WILLIAM G. YOUNG DISTRICT JUDGE
10 The exception is the group of twenty detainees who were tested on May 1 following the violent episode in Unit B, where one detainee tested positive (but then tested negative two days later). See Savino, 2020 WL 2404923, at *10.
11 Decl. Oren Sellstrom Supp. Pls.’ Mot. Prelim. Inj., Ex. D, Dep. Steven Souza 318:9-12, ECF No. 151-4; see also id. at 280:15-16 (“We do not do testing on staff. We direct them to their [primary care physician].”).
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 Case 1:20-cv-10617-WGY Document 244 Filed 06/30/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

MARIA ALEJANDRA CELIMEN SAVINO, )

JULIO CESAR MEDEIROS NEVES,

)

and all those similarly situated, )

)

Plaintiffs-Petitioners, )

)

v.

)

)

STEVEN J. SOUZA, Superintendent of )

Bristol County House of Correction )

in his official capacity,

)

)

Defendant-Respondent. )

)

CIVIL ACTION NO. 20-10617-WGY

YOUNG, D.J.

June 30, 2020

ORDER

On May 7, 2020, this Court issued a preliminary injunction,

ECF No. 168, which was modified on May 11, ECF No. 172. See

Savino v. Souza, __ F. Supp. 3d. __, No. 20-10617-WGY, 2020 WL

2404923, at *11 (D. Mass. May 12, 2020). During a hearing held

on June 15, 2020, the Court said it was disposed to modify

paragraph 2 of the preliminary injunction to allow admission of

immigration detainees into Bristol County House of Correction

from the criminal wing of that facility, and the Court requested

the parties’ input on that matter. Tr. Hr’g 19-20, ECF No. 227.

The parties then filed briefs. Def.’s Br., ECF No. 235; Pls.’

Further Br. Medical & Capacity Issues 14-16, ECF No. 240.

Case 1:20-cv-10617-WGY Document 244 Filed 06/30/20 Page 2 of 2
After careful consideration, the Court rules that a “change in operative fact” warrants modifying paragraph 2 of the preliminary injunction.1 Two factual changes are particularly important: (1) the population has dropped from 80 detainees when the preliminary injunction was issued, Savino, 2020 WL 2404923, at *2, to 62 detainees, ECF No. 234; and (2) all detainees, with the exception of a few who refused testing and so were quarantined, have now tested negative for COVID-19, Decl. Judy Borges ¶ 2, ECF No. 185-1. The Court is also concerned about the risk to public health resulting from transferring new detainees between facilities, include those outside the state.
Accordingly, paragraph 2 of the preliminary injunction is modified to add the following sentence: “New immigration detainees may, upon motion and leave from the Court, be admitted from the criminal wing of the facility, but only if they have (1) tested negative for COVID-19 and remained isolated since their test, (2) been evaluated for underlying medical conditions, and (3) been considered for release by ICE.”
SO ORDERED. /s/ William G. Young___ WILLIAM G. YOUNG DISTRICT JUDGE
1 Concilio de Salud Integral de Loiza, Inc. v. PérezPerdomo, 551 F.3d 10, 16 (1st Cir. 2008); Axia NetMedia Corp. v. Massachusetts Tech. Park Corp., 343 F. Supp. 3d 8, 12 (D. Mass. 2018) (Hillman, J.).
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 Case 1:20-cv-10617-WGY Document 246 Filed 07/06/20 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

PLAINTIFFS’ FURTHER BRIEFING IN OPPOSITION TO DEFENDANT’S MOTION TO REVOKE BAIL
On July 1, 2020, the Court granted Plaintiffs’ motion to compel compliance with a subpoena directed towards Defendant’s subcontractor, BI Incorporated, for GPS coordinates showing the alleged bail condition violations of three class members: Desmond Joseph, Ranferi Ramirez-Maldonado, and Carlos Gutierrez-Deleon. As set forth more fully below, the documents demonstrate that the vast majority of “violations” turn out to be within a standard range of GPS error, i.e., locations within a one-tenth of a mile range of the class members’ residences. In other cases, GPS coordinates indicate that a class member is both at home and at some other location simultaneously, calling into question the accuracy of these coordinates as well. In light of Defendant’s failure of proof, Plaintiffs respectfully request that Defendant’s motion to revoke bail for class members Joseph, Ramirez-Maldonado, and Deleon be denied.
1

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I. BACKGROUND On June 3, 2020, Defendant moved for bail revocation for ten class members, and has
alleged that these individuals engaged in “hundreds of violations” of the Court’s house arrest orders. ECF 199; ECF 236 at 14. Defendant also claimed that all class members’ release paperwork uniformly and accurately stated the Court’s bail conditions, and that class members have all been uniformly and accurately informed of the Court’s conditions by ICE and its agents as well. ECF 218 at 7-9; ECF 236 at 2, 11-12, 14.
This narrative quickly fell apart under scrutiny. Plaintiffs submitted numerous documents demonstrating that class members had received a range of release paperwork, some accurately describing the Court’s conditions and some not. See Exhibits to ECF 202 (filed under seal). Plaintiffs also submitted numerous declarations describing how ICE’s agents at BI (through a program known as ISAP) had given class members inaccurate and misleading information, both orally and in writing. See id. When pressed by the Court to specifically respond to these allegations, Defendant filed declarations from several of the individual BI staff members in question, largely confirming class members’ statements about how these staff had provided information inconsistent with the Court’s orders. ECF 236-10, 236-12.
At the June 25, 2020 bail revocation hearing, the Court focused in particular on class members who Defendant had alleged had violated bail conditions since the June 15, 2020 hearing, by which time Defendant had stated that it had instructed its agents to cease providing misinformation to class members. At the June 25, 2020 hearing, the Court revoked bail for two class members and continued the hearing for several others. ECF 242. On July 1, 2020, the Court denied Defendant’s motion to revoke bail for one class member, Ms. Pamlar Ferreira, for whom no violations had been alleged since the June 15, 2020 hearing. At the same hearing, the
2

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Court allowed Plaintiffs’ motion to compel compliance with a subpoena to BI, Defendant’s subcontractor, for GPS data underlying the alleged violations for Mr. Joseph, Mr. RamirezMaldonado, and Mr. Deleon during the period in question. BI complied on June 30, 2020 and July 1, 2020.
The records produced by BI undermine Defendant’s claim of “hundreds of violations” for the class members whose bail Defendant seeks to revoke. In fact, the vast majority of what Defendant appears to be calling “violations” for the three class members for whom data has now been produced (and likely other class members as well) consist of GPS coordinates under onetenth of a mile from the class members’ residences – “drift points” that are well within the range of error for GPS technology. As the government’s official website on GPS data states, “[m]any things can degrade GPS positioning accuracy.” See GPS Accuracy, available at https://www.gps.gov/systems/gps/performance/accuracy/. Common causes of inaccuracy include “[s]atellite signal blockage due to buildings, bridges, trees, etc…” and “indoor or underground use.” Id.; see also id. (noting that while GPS data from smartphones “under open sky” are typically accurate within about 16 feet, “their accuracy worsens near buildings, bridges, and trees.”).1 Moreover, in many cases in which there are GPS coordinates purporting to show class members out of their residences, there are GPS coordinates at the same time showing such class members to be at home. In light of this evidence, Defendant has failed to demonstrate that bail should be revoked for any of the specified class members.
1 See also Commonwealth v. Davis, 97 Mass. App. Ct 653, 2020 WL 3088773 (June 11, 2020) at *5 ( “[P]ositioning information derived from the [GPS] monitor was, like all GPS information, subject to variations in accuracy depending upon atmospheric conditions, intervening obstacles, or reflection of the satellite signals from buildings, windows, or cars…”) (determining, in a case involving BI GPS devices, that while such evidence is admissible, the listed inaccuracies go to the weight of the evidence); LOS ANGELES TIMES, Tests found major flaws in parolee GPS monitoring devices, March 30, 2013 (widespread testing of GPS devices in California showed that “reported locations were off by as much as three miles”), available at https://www.latimes.com/local/la-xpm-2013-mar-30-lame-ff-gps-monitors-20130331-story.html.
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II. DESMOND JOSEPH Mr. Joseph is a 33-year-old father of two children, who has lived in the United States for
more than 15 years. A declaration filed on June 24, 2020 from Beronica Perez of ISAP confirmed what Mr. Desmond had stated in his prior declaration: that following his release from BCHOC on bail, ICE’s agents gave him instructions that were contrary to, and inconsistent with, the Court’s bail conditions, stating “that he could not leave the states of New Hampshire, Connecticut, New York, Rhode Island, New Jersey, and Massachusetts.” ECF 236-10, Perez Decl. ¶ 2. Defendant has not alleged that Mr. Joseph has violated his bail conditions since the June 15, 2020 hearing. See ECF 236-1, Guarna-Armstrong Decl. ¶ 24 (noting no bail condition violations between June 15, 2020 and June 18, 2020).
Even during these earlier periods when Mr. Joseph was being misinformed of the Court’s conditions by ICE’s agents, many of Mr. Joseph’s alleged “violations” are highly questionable. Mr. Joseph lives at 3545 Main Street in Hartford, CT, which is a large, L-shaped public housing building that sits at the corner of Main Street and St. Monica’s Avenue. A street called Bennett Circle loops directly behind the buildings:
Many of the violations that Defendant apparently alleges for Mr. Joseph even during prior periods occur at GPS coordinates that are within feet of the building, such as at 3445 Main
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Street, a location approximately 50 feet from his home address on the side of his building; or 3521 Main Street, a private residence next door to the complex; or 3503 Main St., located at the corner of his building approximately 140 feet away: 3445 Main St:

3521 Main St. House at 3521 Main St.

Mr. Joseph’s apartment building.

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3503 Main St. Mr. Joseph’s apartment building.
Mr. Joseph’s apartment parking lot.
Moreover, a number of entries show Mr. Joseph at two locations simultaneously: i.e., both inside and outside his home.
Given that Defendant has not alleged that Mr. Joseph has violated the Court’s bail conditions since June 15, 2020; that he was indisputably given misleading and inaccurate information about his bail conditions by Defendant’s agents prior to that time; and that even many earlier “violations” of the house arrest provision are within the range of standard GPS error, Defendant’s motion to revoke Mr. Joseph’s bail should be denied.
III. RANFERI RAMIREZ-MALDONADO Mr. Ramirez-Maldonado is a 33-year-old man who lives with his wife and two U.S.
citizen children in a large public housing complex at 20a Memorial Road, Somerville, MA.2 He has, so far, been provided three different GPS devices because of various malfunctions. See Exhibits to ECF 202, Ramirez-Maldonado Dec.¶ 14. Like Mr. Joseph, Mr. Ramirez-Maldonado was misinformed of the Court’s bail conditions by ICE’s agents. Samantha Solis, a Case
2 The “Mystic River/Memorial Road” public housing development is managed by the Somerville Housing Authority.
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Case 1:20-cv-10617-WGY Document 246 Filed 07/06/20 Page 7 of 10 Specialist at BI, testified that she advised Mr. Ramirez-Maldonado, as she does all of her clients, not that he was under house arrest but rather that he “cannot leave the states of New Hampshire, Connecticut, Rhode Island and Massachusetts.” ECF 236-12, Solis Decl. ¶ 5.
Defendant has alleged one violation for Mr. Ramirez-Maldonado occurring after June 15, 2020, stating that Mr. Ramirez-Maldonado was located by the GPS system at an address away from his house (75 Jaques Street) on June 15, 2020. ECF 236-1 ¶23. The map below shows three points: Mr. Ramirez-Maldonado’s home address in green; the 75 Jaques St. address from the declaration in purple; and the actual GPS coordinates provided by BI for the alleged 75 Jaques St. violation in orange.
Two things are clear from plotting the coordinates: First, that the distance between Mr. Maldonado’s home address and the point of the violation is de minimis and likely the product of GPS drifting, see supra, or Mr. Ramirez-Maldonado moving within his own abode. Second, that
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government representations that the GPS coordinate point to a specific address are themselves mere estimates.3 Notably, whenever BI has called on Mr. Ramirez-Maldonado to determine his whereabouts, they have found him to be present at his home address, and Defendant has not claimed otherwise.
Given that the accuracy of GPS coordinates degrades near buildings and for indoor use, see supra, it is highly likely that the one violation alleged for Mr. Ramirez-Maldonado since June 15, 2020 is simply the result of standard GPS error. In light of the undisputed misinformation that Defendant’s agents provided to Mr. Ramirez-Maldonado, and the fact that his one alleged violation since June 15, 2020 is a coordinate just feet away from his residence of record, Plaintiffs respectfully request that Defendant’s motion to revoke his bail be denied.
IV. CARLOS GUTIERREZ DELEON Mr. Deleon is a 41-year-old father of a newborn U.S. citizen son. Mr. Deleon’s records
show numerous entries that Defendant apparently alleges are “violations,” which are within .1 miles of his home. For example, many of the supposed violations show GPS coordinates of a location at 225 Phillips Avenue, a mere 36 feet from Mr. Deleon’s residence:
3 This is not to fault the address estimate, which is close to where the GPS coordinates are, but instead to note that the estimated address is also some distance from the GPS coordinate (about the same distance as the coordinate to Mr. Ramirez-Maldonado’s home address) and that, despite government representations, the GPS coordinate does not, in fact, place Mr. Ramirez-Maldonado at a particular address.
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Mr. Deleon knows no one at this address and, in light of the inaccuracy of GPS technology for

indoor use and around buildings, the most likely explanation for these and the other similar

“violations” is simply the standard range of inaccuracy for GPS technology. Certainly,

Defendant has not produced sufficient evidence to justify re-detaining Mr. Deleon on this basis.

CONCLUSION

For all of the foregoing reasons, in addition to those set forth in previous briefings on this

issue, Defendant’s motion to revoke the bail of Desmond Joseph, Ranferi Ramirez-Maldonado

and Carlos Gutierrez Deleon should be denied.

July 6, 2020

Respectfully Submitted,

/s/ Oren Sellstrom Oren Nimni (BBO #691821) Oren Sellstrom (BBO #569045)

Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal†

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Case 1:20-cv-10617-WGY Document 246 Filed 07/06/20 Page 10 of 10

Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0606 onimni@lawyersforcivilrights.org
Grace Choi, Law Student Intern* Kayla Crowell, Law Student Intern* Aseem Mehta, Law Graduate* Alden Pinkham, Law Graduate* Daniel Phillips, Law Graduate* Fernando Quiroz, Law Student Intern* Bianca Rey, Law Student Intern* Megan Yan, Law Graduate* Reena Parikh† Muneer Ahmad† Michael Wishnie (BBO# 568654)
Jerome N. Frank Legal Svcs. Org.

P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Lisa Pirozzolo John Butts Vinita Ferrera Felicia Ellsworth Nicole M.F. Dooley Annaleigh Curtis Michael Brown Rama Attreya Gary Howell-Walton Mikayla C. Foster Elizabeth E. Driscoll Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 021009 Lisa.Pirozzolo@wilmerhale.com

CERTIFICATE OF SERVICE
I hereby certify that, on July 6, 2020 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system.
Date: July 6, 2020 __/s/ Oren Sellstrom_______________ Oren Sellstrom (BBO #569045)

† Admitted pro hac vice.

* Motion for law student appearances pending.
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 Case 1:20-cv-10617-WGY Document 247 Filed 07/07/20 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO )

and JULIO CESAR MEDEIROS NEVES,

)

)

Petitioners-Plaintiffs,

)

)

20-cv-10617 WGY

v.

)

)

THOMAS HODGSON, et al.,

)

)

Respondents-Defendants.

)

__________________________________________)

DEFENDANTS’ UNOPPOSED MOTION TO MODIFY PRELIMINARY INJUNCTION Respondents-Defendants hereby move for a further modification of the Court’s preliminary injunction order, docket #175. The reason for the motion is that certain detainees require medical consultation and/or care outside the detention facility or detainees must obtain a medical examination by a designated civil surgeon outside of the detention facility as part of the process of adjusting their status to a lawful permanent resident. Defendants seek to return the detainees after the outside medical treatment to the Bristol County House of Corrections (“BCHOC”). Defendants believe that this makes more sense, from a COVID-19 risk perspective, than transferring them into a different institution which could also require a change of venue to a different immigration court. Counsel for Plaintiffs do not oppose the modification provided that the following procedure is established in the modification: 1. Defendants will give Plaintiffs’ counsel seven (7) days’ written notice of the upcoming medical appointment as long as Defendants are aware of the necessity of the medical

Case 1:20-cv-10617-WGY Document 247 Filed 07/07/20 Page 2 of 3
appointment or examination. If exigent circumstances reasonably prevent Defendants from providing 7 days’ written notice, Defendants will immediately provide written notice to Plaintiffs’ counsel as soon as possible. The inability to provide 7 days’ written notice will not prevent Defendants from obtaining medical treatment for a detainee as determined appropriate such as in an emergency hospitalization situation. Notice will not include the exact location, date or time of the scheduled medical appointment for security reasons, but will include the general purpose of the appointment.
2. Within 24 hours of Defendants’ notice, but at a mutually agreeable time, Defendants will make the detainee available for a telephone call with Plaintiffs’ counsel. The inability to schedule a telephone conference prior to obtaining medical treatment for a detainee will not prevent Defendants from obtaining medical treatment for a detainee as determined appropriate such as in an emergency hospitalization situation
3. Plaintiffs’ counsel will have 48 hours from the time of the telephone conference in which to object to the proposed treatment and/or return of the detainee to BCHOC. Any such objection shall be made in writing to Defendants’ counsel;
4. If no objection is made, the transport out of, and back into, BCHOC may go forward; 5. If an objection is lodged, Defendants may file a motion seeking the Court’s permission for their proposed action. All time periods shall be calendar, not business, days. All detainees taken from BCHOC for medical procedures will be instructed to wear masks and be screened for signs and symptoms of COVID-19 before they leave and before they are returned to BCHOC. They will not be tested for COVID-19 unless they have one or more symptoms of an infection, or the Court orders otherwise.

Case 1:20-cv-10617-WGY Document 247 Filed 07/07/20 Page 3 of 3

Absent a modification of the preliminary injunction order, Defendants will have to seek individual orders. As of right now, there are 10 detainees for whom 13 medical appointments have been scheduled. The earliest procedure is set for July 10, 2020 (notice was given to counsel in the morning of July 2, 2020).
The Defendants request that the Court modify the preliminary injunction order in the manner set forth above.

July 6, 2020

Respectfully submitted,
ANDREW E. LELLING, United States Attorney
By: /s/ Thomas E. Kanwit Thomas E. Kanwit Michael Sady Assistant U.S. Attorneys U.S. Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 thomas.kanwit@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).

Dated: July 6, 2020

/s/ Thomas E. Kanwit Thomas E. Kanwit

 
 Case 1:20-cv-10617-WGY Document 397 Filed 04/06/21 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v. STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY ORAL ARGUMENT REQUESTED

JOINT MOTION TO PRELIMINARILY APPROVE SETTLEMENT, APPROVE CLASS NOTICE, AND SCHEDULE FAIRNESS HEARING
Plaintiffs and Defendant, pursuant to Fed. R. Civ. P. 23(e), hereby respectfully request that the Court enter an order substantially in the form of the Proposed Order attached to the Settlement Agreement filed concurrently herewith: (1) preliminarily approving the Settlement Agreement; (2) approving the Parties’ proposed notice to class members (“Notice”) (Exhibit D to the Settlement Agreement), which Notice Plaintiffs’ counsel shall effectuate not later than three (3) days after the Court enters an order granting this Motion; and (3) scheduling a fairness hearing (“Fairness Hearing”) no later than twenty-eight (28) days from the date this Motion is filed, at which the Parties will ask the Court to issue final approval of the Agreement. As grounds for this motion, Plaintiffs and Defendant rely on their concurrently filed Memorandum of Law in Support. April 6, 2021 Respectfully submitted, MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES

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By their attorneys:
/s/ Oren Sellstrom Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0606 osellstrom@lawyersforcivilrights.org

Emily Jo Coady, Law Student Intern✦ Grace Choi, Law Student Intern
Kayla Crowell, Law Student Intern Juan Fernando Luna Léon, Law Student Intern✦ Siyuan Sonia Qin, Law Student Intern✦ Fernando Quiroz, Law Student Intern✦ Isir Said, Law Student Intern✦ Michael Wishnie (BBO# 568654) Sara Zampierin† Jerome N. Frank Legal Svcs. Org. P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Lisa Pirozzolo (BBO #561922) John Butts (BBO #643201) Felicia Ellsworth (BBO #665232) Nicole M.F. Dooley (BBO #690539) Annaleigh Curtis (BBO #696165) Michael Brown (BBO #695276) Andy O’Laughlin (BBO #691836) Rama Attreya (BBO #699395) Gary Howell-Walton (BBO #705470) Mikayla C. Foster (BBO #705360) Elizabeth E. Driscoll (BBO #705302) Asma Jaber (BBO #707322) ** Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street, Boston, MA 02109 Mike.Brown@wilmerhale.com

† Admitted pro hac vice * Motion for law student appearance pending. ✦ Motion for law student appearance forthcoming. ** Pro hac vice forthcoming
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Case 1:20-cv-10617-WGY Document 397 Filed 04/06/21 Page 3 of 3
STEVEN J. SOUZA NATHANIEL B. MENDELL Acting United States Attorney District of Massachusetts /s/ Thomas E. Kanwit THOMAS E. KANWIT Assistant U.S. Attorney 1 Courthouse Way, Suite 9200 Boston, MA 02210 Thomas.kanwit@usdoj.gov (617) 748-3100 Counsel for Defendant Souza and for U.S. Immigration and Customs Enforcement
Date: April 6, 2021
LOCAL RULE 7.1 CERTIFICATION Pursuant to Local Rule 7.1(a)(2) counsel for the parties have conferred regarding this Motion, and jointly request the relief requested herein.
/s/ Oren Sellstrom Oren Sellstrom
CERTIFICATE OF SERVICE I, Oren Sellstrom, hereby certify that a true and accurate copy of this document was served via ECF to all registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as nonregistered participants on April 6, 2021.
/s/ Oren Sellstrom Oren Sellstrom
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 Case 1:20-cv-10617-WGY Document 398 Filed 04/06/21 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v.
STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

SETTLEMENT AGREEMENT

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TABLE OF CONTENTS I. PARTIES TO SETTLEMENT AGREEMENT.................................................................. 3 II. PURPOSE OF SETTLEMENT AGREEMENT ................................................................ 5 III. DEFINITIONS.................................................................................................................... 5 IV. CATEGORIES OF CLASS MEMBER RELIEF ............................................................... 7 V. RE-ARREST CONDITIONS ........................................................................................... 10 VI. DISMISSAL OF APPEAL ............................................................................................... 11 VII. REPOPULATION OF BCHOC ....................................................................................... 12 VIII. RELEASE AND SETTLEMENT OF CLAIMS .............................................................. 12 IX. FINAL APPROVAL......................................................................................................... 13 X. DISPUTE RESOLUTION AND ENFORCEMENT........................................................ 14 XI. NO ADMISSION OF LIABILITY................................................................................... 14 XII. ATTORNEYS’ FEES AND COSTS ................................................................................ 14 XIII. NOTICE AND APPROVAL PROCEDURE ................................................................... 15 XIV. MISCELLANEOUS ......................................................................................................... 18 XV. TERM ............................................................................................................................... 20
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I. PARTIES TO SETTLEMENT AGREEMENT The Parties to this Settlement Agreement (“Agreement”) are: 1. Plaintiffs: On April 8, 2020, the Court certified the following Class: “All civil
immigration detainees who are now held by Respondent-Defendants at the Bristol
County House of Corrections and C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts.” ECF No. 64. For purposes of this Agreement, the Parties agree and stipulate that the “Class Members” consist of the following individuals and no others:1
a) Individuals to be Released Pursuant to this Agreement (1) Augustin, Smith (2) Kayitare, Fred*2 (3) Wafula, Lloyd (4) Ixcuna-Lucas, Miguel (5) Guallan-Tixi, Diego (6) Gomes, Marcio
b) Individuals to be Provided Other Relief (1) Fernandes, Joao Lima (2) Da Graca, Aires* (3) Lewis, Conroy* (4) Amado, Joao* (5) De Carvalho, Janito (6) Mullings, Terrano (7) Ali, Liban
1 The Parties agree to this definition of Class Members for settlement purposes only and reserve all rights should the issue of who is or is not a member of the certified class arise in the future. 2 The individuals marked with an asterisk (*) have current appeals of their bail denials in this Action pending in Appellate Proceedings (as defined herein). The Appellate Proceedings are being resolved as part of this Agreement, as addressed infra in Section VII.
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c) Individuals Currently Released on Bail by Order of Judge Young: (1) Al Amiri, Salim (2) Almanzar, Juan (3) Candelario-Echegoyen, Hugo (4) Carangui, Carlos (5) Castillo-Malpica, Gabriel (6) Corleto, Kevin (7) Cruz Soares, Geraldo (8) De Jesus Concepcion, Angela (9) Ferreira, Pamlar (10) Figueroa Morales, Julio (11) Hussein, Hussien (12) James, Andrea (13) Jaramillo-Perez, Esteban (14) Jaramillo-Quiroz, Hector (15) Joseph, Desmond (16) Kita Tshimanga, Antoni (17) Mahadeo, Kavon (18) Maney Lal, Neved Bai (19) Maria De Oliveira, Robson (20) Medeiros Neves Junio, Julio (21) Miranda-Castillo, Luis (22) Montes-Santos, Pascual (23) Nikiforidis, Georgios (24) Peguero-Vasquez, Victor (25) Ramirez-Maldonado, Ranferi (26) Rojas-Ceballos, Juan (27) Sanchez Lopez, Victor (28) Smith, Donovan (29) Thomas, Joko (30) Thomas, Akeim (31) Urbina Rivas, Henry
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(32) Velasquez-Hernandez, Oscar 2. Defendant: Steven Souza, in his official capacity; 3. U.S. Immigration and Customs Enforcement. II. PURPOSE OF SETTLEMENT AGREEMENT The Parties acknowledge and agree that this Agreement shall constitute a full, fair, and complete settlement of Savino v. Souza, No. 20-cv-10617 (the “Action”). III. DEFINITIONS 1. “Agreement” shall have the meaning ascribed to it in Section I. 2. “Action” shall have the meaning ascribed to it in Section II. 3. “Appellate Proceedings” shall refer to First Circuit Case No. 20-1626. 4. “BCHOC” shall refer to the Bristol County House of Correction and C. Carlos
Carreiro Immigration Detention Center in North Dartmouth, Massachusetts. 5. “Boston Area of Responsibility” shall refer to Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island, and Vermont. 6. “Class Members” shall have the meaning ascribed to it in Section I. 7. “Complaint” shall refer to the Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. 2241 and Complaint for Declaratory and Injunctive Relief filed in this Action on March 27, 2020 (ECF No. 1). 8. “Court” means the United States District Court for the District of Massachusetts. 9. “Defendant” shall have the meaning ascribed to it in Section I. 10. “Fairness Hearing” means the hearing to be held by the Court, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to determine whether the settlement set forth in this Agreement should be approved.
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11. “Final Approval” shall refer to the Court’s entry of this Agreement as an Order of the Court following a hearing and finding that the Agreement is fair, reasonable, and adequate pursuant to Fed. R. Civ. P. 23(e).
12. “ICE” shall refer to United States Immigration and Customs Enforcement, inclusive of any employee or agent thereof.
13. “Parties” shall have the meaning ascribed to it in Section I. 14. “Party” shall mean any individual or entity specifically listed in Section I. 15. “Plaintiffs” shall have the meaning ascribed to it in Section I. 16. “Preliminary Approval Order” means the “Order Preliminarily Approving Class
Action Settlement, Providing For Notice and Scheduling Order,” substantially in the form of Exhibit A attached hereto, which, among other things, preliminarily approves this Agreement and provides for notification to the Class Members and sets the schedule for the Fairness Hearing. 17. “§(1)(a) Class Members” shall refer to the individuals in subsection (1)(a) of Section I. 18. “§(1)(b) Class Members” shall refer to the individuals in subsection (1)(b) of Section I. 19. “§(1)(c) Class Members” shall refer to the individuals in subsection (1)(c) of Section I. 20. “Class Members With Appellate Proceedings” shall refer to the individuals marked with asterisks in Section I, above.
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IV. CATEGORIES OF CLASS MEMBER RELIEF A. Class Members Currently Released On Bail By Judge Young Concurrently with the submission of this Agreement to the Court for approval, Plaintiffs
and Defendant will jointly move the Court for alteration of §(1)(c) Class Members’ conditions of release, such that they are not subject to (1) any curfew or home confinement restrictions, inclusive of the restrictions imposed by the Court’s December 22, 2020 Order (ECF No. 354), or (2) any GPS electronic monitoring. Subject to the re-arrest and detention or modification provisions in Section V, §(1)(c) Class Members shall remain released following Final Approval, and the alteration of conditions of release shall become effective and permanent as of the date of Final Approval, to the extent that the alteration of conditions has not already been approved by the Court. Defendant shall promptly inform all ICE, BI Incorporated, Intensive Supervision Appearance Program (ISAP), or other compliance staff assigned to §(1)(c) Class Members when these changes in conditions of release are made.
B. Class Members To Be Released Pursuant To This Agreement The releases of §(1)(a) Class Members will be effected as soon as practically possible following execution of the Agreement by the Parties but no later than seventy-two hours following execution of the Agreement. Prior to execution of this Agreement, Plaintiffs’ counsel shall provide ICE with residential addresses to which each §(1)(a) Class Member will be released. Should any of these addresses not be approved by ICE, ICE shall so notify Plaintiffs’ counsel within twenty-four (24) hours and the Parties shall confer on an alternative arrangement for the release of that individual. Class Members released pursuant to this Section IVB shall complete fourteen (14) days of quarantine immediately following their release from BCHOC. Following completion of the quarantine period, §(1)(a) Class Members shall not be subject to any curfew or home confinement restrictions as part of the conditions of their release. These
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Class Members may be subject to electronic monitoring at the discretion of ICE. The foregoing timing notwithstanding, the continued release of §(1)(a) Class Members is contingent on obtaining Final Approval of this Agreement. Should the Agreement not receive Final Approval from the Court, ICE reserves the right to, and Plaintiffs shall not oppose, re-arrest and detention of §(1)(a) Class Members who were released in advance of Final Approval. This exception for re-arrest and detention in the event the Agreement does not receive Final Approval shall not be subject to the re-arrest provisions described in Section V.
C. Class Members Provided Other Relief Pursuant to this Agreement The §(1)(b) Class Members shall be presented the option to transfer out of the BCHOC facility to another ICE facility within the Boston Area of Responsibility. Within fourteen (14) days of execution of the Agreement, ICE shall provide Plaintiffs’ counsel with a list identifying alternative locations of detention for each of the §(1)(b) Class Members. Defendant shall provide Plaintiffs’ counsel with phone access to these Class Members, so that Plaintiffs’ counsel can relay this information to the §(1)(b) Class Members. These individuals will have five (5) days from the date Plaintiffs’ counsel is provided phone access to §(1)(b) Class Members to decide whether to exercise their option to transfer, or to remain at BCHOC. Should they elect to exercise their transfer option, they will inform Plaintiffs’ counsel. Plaintiffs’ counsel shall relay the decision to ICE and Defendant, who will then effectuate the transfer. ICE maintains discretion as permitted by law to release any Class Member not released through this Agreement. Nothing in this Agreement restricts the ability of ICE to voluntarily choose to release individuals on their own initiative or in response to new guidance or policy changes or an order of an administrative or federal court. The offering of a transfer option as part of a court-approved settlement, or the Class Member’s election to not exercise that option,
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may not be used in any subsequent proceeding (i) to the detriment of any Class Member or (ii) in support of any argument for relief against Defendant, BCHOC, ICE, or any of their respective employees. Nothing in this Agreement restricts the ability of ICE to transfer a Class Member to another facility for emergent operational or security needs, except that Class Members who exercise their option to be transferred from BCHOC to another facility shall not be subsequently transferred back to BCHOC for any reason, unless the Class Member consents to be returned to BCHOC.
D. Individualized Relief In addition to the foregoing, the following relief shall be made available and continue thereafter as applicable, to Class Members Joao Fernandes and Janito De Carvalho, as follows: Joao Fernandes: Upon submission of this Agreement to the Court for approval, ICE shall join in a motion to reopen by Mr. Fernandes before the Board of Immigration Appeals (BIA). A copy of the joint motion to be filed with the BIA is attached as Exhibit B. Upon approval of the BIA of the joint motion to reopen, Mr. Fernandes will file a motion under Fed. R. App. P. 42(b) to voluntarily dismiss his pending petition for review, docketed as Lima Fernandes v. Wilkinson, No. 20-2035 (1st Cir.). Further, Mr. Fernandes will file an unopposed motion to abate the proceedings in his petition for review for the purpose of excusing the respondent from the due date of March 29, 2021 to file the answering brief. Mr. Fernandes agrees not to file any habeas petition alleging unlawful prolonged detention unless his reopened removal proceedings before the immigration court and Board of Immigration Appeals extend beyond one year, at which time Mr. Fernandes will be able to file such a claim. The one-year period during which Mr. Fernandes agrees not to file a habeas petition will begin upon the granting of the joint motion to reopen. Nothing in this agreement should be construed as a concession by ICE that detention
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lasting longer than one year is unreasonably prolonged or otherwise unlawful. Nothing in this Agreement requires ICE to stipulate or agree that Mr. Fernandes is eligible for a bond hearing before the immigration court or eligible for any form of immigration relief.
In the event that the BIA does not grant the joint motion to reopen described above, Mr. Fernandes will not withdraw his pending petition for review at the First Circuit. If the BIA grants the joint motion to reopen but the Court does not grant Final Approval of this Agreement, the Parties agree that Mr. Fernandes will nevertheless dismiss his pending petition for review.
Janito De Carvalho: Defendant or ICE hereby agrees to send the letter in Exhibit C (or its functional equivalent) to the Salem Probate Court as it relates to Mr. De Carvalho’s motion to reopen his family law matter (Case No. ES19W1162WD), within two weeks of Final Approval, and to provide him with a copy. If and when that family law matter is reopened, ICE and Defendant hereby agree to make Mr. De Carvalho available for family court proceedings provided ICE or Defendant is given reasonable notice thereof and that his attendance at family court proceedings does not interfere with any future appearances before the immigration court or his removal from the United States. ICE and Defendant shall use best efforts to provide transport and/or video conference capabilities to Mr. De Carvalho for those proceedings. V. RE-ARREST CONDITIONS
ICE shall not arrest or re-detain any §§ (1)(a) or (c) Class Member but for Good Cause. For the purposes of this Agreement, Good Cause is limited to a material violation of the terms and conditions of a §§ (1)(a) or (c) Class Member’s order of recognizance or supervision. Absent an emergency involving a risk of harm to others by a released §§ (1)(a) or (c) Class Member, any effort to re-detain a §§ (1)(a) or (c) Class Member for Good Cause will be subject to Field Office Director (“FOD”) or Special Agent in Charge (“SAC”) advance approval.
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Notwithstanding the above paragraph, ICE may re-arrest and re-detain §§ (1)(a) or (c) Class Members to effectuate a final order of removal, but only after good faith consideration of the §§ (1)(a) or (c) Class Member’s individual circumstances and only after ICE has determined whether the option of self-removal and/or prior notice (as opposed to re-arrest) is appropriate for that individual §§ (1)(a) or (c) Class Member. ICE will make this determination by applying the same standards of review and process that it employs in cases of final orders of removal for individuals on its non-detained dockets.
ICE may also alter the terms and conditions of release for §§ (1)(a) or (c) Class Members for Good Cause (as defined herein). In the case of any Class Member whom ICE could otherwise re-arrest and re-detain to effectuate a final order of removal under the standards set forth in the previous paragraph, ICE may, but is not required to, offer them electronic monitoring as an alternative to re-arrest and detention. These protections against re-arrest or modification of terms and conditions of release for released §§ (1)(a) or (c) Class Members will remain in place for a period of one year from the date of execution of this Agreement. VI. DISMISSAL OF APPEAL
When this Agreement has been executed by counsel for the Parties, they will file a joint motion to dismiss without prejudice Case No. 20-1626 currently pending on behalf of Class Members With Appellate Proceedings pursuant to Fed. R. App. P. 42(b). The dismissal will be without prejudice to reinstatement in the event that the Court does not enter Final Approval. Reinstatement shall be by notice filed by counsel for the Class Members With Appellate Proceedings within 14 days of the Court’s order rejecting Final Approval. If no notice of reinstatement is filed within 14 days of the Court’s order rejecting Final Approval, the dismissal shall be with prejudice. Each party shall bear its own costs.
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VII. REPOPULATION OF BCHOC The Preliminary Injunction that the Court issued on May 7, 2020, ECF No. 168, modified
on May 11, 2020, ECF No. 172, and on May 12, 2020, issued a written opinion supporting, ECF No. 175, in which it prohibited the admission of new detainees to BCHOC, shall remain in place until Final Approval of this Agreement is entered, at which point the Preliminary Injunction shall be dissolved. Prior to the expiration of the time period for exercising the transfer option under Section IV.C, Defendant and ICE will use good faith efforts to communicate and keep Plaintiffs’ counsel apprised of placement of detainees at BCHOC so that Plaintiffs’ counsel can share any information regarding the repopulation of BCHOC with §1(b) Class Members in order to counsel those individuals on whether or not to exercise the transfer option provided to them under Section IV.C. of this Agreement. Defendant and ICE’s duty to keep Plaintiffs’ counsel apprised of placement of detainees at BCHOC shall not continue past the date on which §1(b) Class Members decide whether or not they will exercise their transfer option. VIII. RELEASE AND SETTLEMENT OF CLAIMS
In consideration of the representations, promises, and agreements set forth herein, the sufficiency of which is hereby acknowledged, Plaintiffs hereby release and forever discharge Defendant and ICE, from the habeas and Rehabilitation Act claims expressly alleged in the Complaint.
Aside from the habeas and Rehabilitation Act claims expressly alleged in the Complaint, no Class Member waives, dismisses, or releases any claim arising out of their detention, including without limitation claims under the Massachusetts Tort Claims Act, the Federal Tort Claims Act, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 USC § 1983. Class Members retain their right to file individual habeas claims seeking release
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from detention on any grounds that are not expressly raised in the Complaint, except as set forth above regarding Mr. Fernandes.
Except as expressly stated herein, this Agreement shall not constitute an admission by ICE, Defendant, or any Class Member for the purpose of asserting any claim or defense in any other proceeding, including but not limited to Class Members’ immigration or criminal proceedings. All claims and defenses in proceedings other than this Action and in the Appellate Proceedings are expressly preserved by all Parties to this Agreement. IX. FINAL APPROVAL
This Agreement shall be subject to the Final Approval of the Court. The Parties shall cooperate in presenting this Agreement to the Court for Final Approval and/or at any hearing under Fed. R. Civ. P. 23(e). If the Court grants Final Approval, the Parties stipulate that this Agreement shall not be construed as a consent decree or its equivalent. If the Court does not grant Final Approval, this Agreement shall be null and void and of no force and effect, and nothing herein shall prejudice the position of any Party with respect to the Action or otherwise, and neither the existence of this Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be admissible in evidence, referred to for any purpose in the Action or in any other litigation or proceeding, or construed as an admission, presumption, or concession by Defendant or ICE of any liability or the truth of any of the allegations of the Action.
If the Court grants Final Approval and following provision of the relief identified in Section IV and the dismissal of appeals outlined in Section VI, the Parties stipulate to jointly move the Court to dismiss the Action.
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X. DISPUTE RESOLUTION AND ENFORCEMENT If any of the Parties believe that another Party is not in substantial compliance, that is, is in
substantial non-compliance, with any provision of this Agreement, that Party shall, through its counsel, provide the allegedly non-compliant Party, in writing, notice of the specific reasons why it believes that they are not in substantial compliance with such provision or provisions, referencing the specific provision or provisions.
Once notified, the Party so notified shall provide a written response to any claim of alleged substantial non-compliance.
Either Defendant, ICE, or Plaintiffs (through their counsel), may request a meeting to discuss and attempt to resolve any dispute. If they are not successful in their efforts to resolve the issue, they may jointly or independently seek relief from any court of competent jurisdiction to the fullest extent permissible by law. XI. NO ADMISSION OF LIABILITY
Nothing in this Agreement, including but not limited to the transfer option, shall be construed in any way as an admission, presumption, or concession by Defendant or ICE of any liability or wrongdoing whatsoever. Defendant and ICE specifically disclaim any liability or wrongdoing whatsoever on the part of themselves, their agents, and their employees, but agree to settle this suit to avoid further protracted litigation. XII. ATTORNEYS’ FEES AND COSTS
Plaintiffs and Plaintiffs’ counsel agree to waive any and all claim to the recovery of attorneys’ fees and costs in connection with this Action if the following conditions are met: a) the Court grants Final Approval; b) the conditions of release for §(1)(c) Class Members are modified as set forth in Section IVA; c) the §(1)(a) Class Members are released as set forth in Section IVB;
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Case 1:20-cv-10617-WGY Document 398 Filed 04/06/21 Page 15 of 22
d) the §(1)(b) Class Members are offered the transfer option as set forth in Section IVC and any of these Class Members who have exercised this option are transferred; e) the joint motion to reopen described in Section IVD is filed; and f) the letter for Mr. De Carvalho is sent and a copy provided as set forth in Section IVD. However, should the foregoing conditions not occur, Plaintiffs and Plaintiffs’ counsel reserve all rights to continue to litigate on Class Members’ behalf and to seek reasonable attorneys’ fees and costs for all services rendered in this Action. The failure of Defendant and ICE to comply with the 72-hour timing requirement of § IV(B) for the release of §(1)(a) Class Members shall not be deemed to reinstate Plaintiffs’ or Plaintiffs’ counsel’s right to fees and costs if Defendant and ICE have made a good faith effort to secure such release within that timeframe and the impediment to such release is either beyond the control of Defendant or ICE or could not have been reasonably foreseeable by them, and the Class Member is released as soon as practicable. Plaintiffs’ counsel also reserves all rights to seek fees and costs incurred solely in connection with the successful enforcement of this Agreement, should the need to seek such enforcement arise following Final Approval. Defendant and ICE reserve all rights to oppose any such petitions for fees and costs. XIII. NOTICE AND APPROVAL PROCEDURE
A. Preliminary Approval As soon as practicable after the execution of this Agreement, the Parties shall jointly
move for a Preliminary Approval Order, substantially in the form of Exhibit A, preliminarily approving this Agreement and finding this settlement to be fair, just, reasonable, and adequate, approving the Class Notice to the Class members as described infra in Section XIII (C), and setting a Fairness Hearing to consider the Final Approval Order and any objections thereto.
B. Effect of the Court’s Denial of the Agreement
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This Agreement is subject to and contingent upon Court approval under Rule 23(e) of the Federal Rules of Civil Procedure. If the Court rejects this Agreement, in whole or in part, or otherwise finds that the Agreement is not fair, reasonable, and adequate, the Parties agree to meet and confer to work to resolve the concerns articulated by the Court and modify the Agreement accordingly. Except as otherwise provided herein, in the event the Agreement is terminated or modified in any material respect or fails to become effective for any reason, the Agreement shall be without prejudice and none of its terms shall be effective or enforceable; the Parties to this Agreement shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Agreement; and except as otherwise expressly provided, the Parties shall proceed in all respects as if this Agreement and any related orders had not been entered. In the event that the Agreement is terminated or modified in any material respect, the Parties shall be deemed not to have waived, not to have modified, or not be estopped from asserting any additional defenses or arguments available to them. In such event, neither this Agreement nor any draft thereof, nor any negotiation, documentation, or other part or aspect of the Parties’ settlement discussions, nor any other document filed or created in connection with this settlement, shall have any effect or be admissible in evidence for any purpose in the litigation or in any other proceeding, except in a proceeding to enforce the Agreement, and all such documents or information shall be treated as strictly confidential and may not, absent a court order, be disclosed to any person other than the Parties’ counsel, and in any event only for the purposes of litigating the Action.
C. Notice for Fairness Hearing The joint motion for Preliminary Approval Order shall request that the Court schedule the
Fairness Hearing for no later than twenty-eight (28) days from the date the joint motion is filed;
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and shall request that the Court order that not later than three (3) days after entry of the Preliminary Approval Order (unless otherwise modified by the Parties or by order of the Court), the Parties shall effectuate notice to Class Members. The Parties stipulate to the form of notice attached at Exhibit D. Defendant agrees to provide Plaintiffs’ counsel with the last known address of each Class Member to confirm notice is being properly issued.
D. Objections to Settlement The joint motion for Preliminary Approval Order shall request that the Court order the
following procedure for objections: that on or before two (2) weeks after the Court issues a Preliminary Approval Order, any Class member who wishes to submit comments or object to the fairness, reasonableness, or adequacy of this Settlement Agreement or the settlement contemplated herein must file with the Clerk of Court and serve on the Parties a statement of objection setting forth the specific reason(s), if any, for the objection, including any legal support or evidence in support of the objection, grounds to support their status as a class member, and whether the class member intends to appear at the Fairness Hearing. The Parties will have five (5) days following the objection period in which to submit answers to any objections that are filed. Any notice submitted to the Clerk of the Court in accordance with this Section VIII(D) shall be sent to: Clerk of the Court, U.S. District Court of Massachusetts, One Courthouse Way, Suite 2300, Boston, MA 02210; copies shall also be served on all counsel to this Agreement.
E. Fairness Hearing At the Fairness Hearing, as required for Final Approval of the settlement pursuant to
Federal Rule of Civil Procedure 23(e)(2), the Parties will jointly request that the Court approve the settlement as final, fair, reasonable, adequate, and binding on Class Members.
F. Opt-Outs
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The Parties agree that no Class Member may opt out of any of the provisions of this Agreement.
G. Final Approval Order and Judgment At the Fairness Hearing, the Parties shall jointly move for entry of the Final Approval
Order, substantially in the form of Exhibit E, granting final approval of this Agreement to be final, fair, reasonable, adequate, and binding on all Class Members, overruling any objections to the Agreement; ordering that the terms be effectuated as set forth in this Agreement; and giving effect to the releases as set forth in Section VIII. XIV. MISCELLANEOUS
A. Governing Law This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts and shall in all respects be interpreted, enforced, and governed under the laws of said Commonwealth and the laws of the United States. B. Confidentiality No part of this Agreement is or will be considered confidential by the Parties. This Agreement will be made available by request under the Massachusetts Public Records Law, Mass. Gen. Laws c. 66, § 10, or Freedom of Information Act, 5 U.S.C. § 552. C. Entire Agreement This Agreement constitutes the entire agreement of the Parties and, except for any Protective Order entered by the Court, supersedes all prior agreements, representations, negotiations, and undertakings in this litigation not set forth or incorporated herein. Each Party represents and acknowledges that each Party is and has been represented by its own counsel. Each Party further represents and acknowledges that, in executing this Agreement, no Party relies or has relied upon any representations or statements made by any other Party or its
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counsel other than the promises and representations set forth in this Agreement. No other statement, promise, or agreement, either written or oral, made by any Party or agents of any Party that is not contained in this written Agreement, or in the individual agreements referenced in Section IVD, will be enforceable.
This Agreement is the result of an arm’s-length negotiation. Since all Parties contributed substantially, materially, and cooperatively in drafting this Agreement, it shall not be more strictly construed against one Party than as against any other.
D. Execution This Agreement may be executed in counterpart originals, all of which, when so executed and taken together, shall be deemed an original and all of which shall constitute one and the same instrument. Each counterpart may be delivered by email (as a PDF attachment) or facsimile, and an email or facsimile signature shall have the same force and effect as an original signature. E. Non-Waiver Failure by Plaintiffs to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions. F. Severability Should any part, term, or provision of this Agreement be declared or be determined by any court to be illegal, invalid, or otherwise unenforceable, the validity of the remaining parts, terms, or provisions shall not be affected thereby and said illegal, invalid, or other unenforceable part, term, or provision shall be deemed not to be part of this Agreement, unless the Court declines to approve this Agreement. However, if the severance of any illegal, invalid, or otherwise unenforceable part, term, or provision materially alters the rights or obligations of the Parties hereunder, the Parties will attempt, through reasonable, good faith negotiations, to agree upon such
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Case 1:20-cv-10617-WGY Document 398 Filed 04/06/21 Page 20 of 22 other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.
G. Amendments Except as otherwise stated, this Agreement shall only be amended, revoked, changed, or modified through a written agreement executed by all Parties and approved by the Court. No waiver of any provision of this Agreement will be valid unless it is in writing and signed by the Party against whom such waiver is charged and approved by the Court. XV. TERM This Agreement shall expire and the entirety of the obligations set forth within its terms shall become null and void four years from the date of the Court’s Final Approval.
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Signed: NATHANIEL B. MENDELL Acting United States Attorney District of Massachusetts /s/ Thomas E. Kanwit THOMAS E. KANWIT Assistant U.S. Attorney 1 Courthouse Way, Suite 9200 Boston, MA 02210 Thomas.kanwit@usdoj.gov (617) 748-3100 Counsel for Defendant Souza and for U.S. Immigration and Customs Enforcement Date: April 6, 2021
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Signed:
/s/ Oren M. Sellstrom Plaintiffs’ District Court Counsel LAWYERS FOR CIVIL RIGHTS
April 6, 2021 Date

/s/ Mike Brown Plaintiffs’ District Court Counsel WILMER CUTLER PICKERING HALE AND DORR LLP
April 6, 2021 Date

/s/ Michael Wishnie Plaintiffs’ District Court Counsel JEROME N. FRANK LEGAL SERVICES ORGANIZATION

/s/ Sameer Ahmed Appellate Counsel for Class Members With Appellate Proceedings HARVARD LAW SCHOOL CRIMMIGRATION CLINIC

April 6, 2021 Date

April 6, 2021 Date

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EXHIBIT A

Case 1:20-cv-10617-WGY Document 398-1 Filed 04/06/21 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs, v. STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
WHEREAS, the above-captioned matter is pending before this Court as a certified class action (the “Action”1);
WHEREAS, the Parties have made an application, pursuant to Federal Rule of Civil Procedure 23(e), for an order: (i) preliminarily approving the Settlement Agreement dated April 6, 2021, which, together with the exhibits annexed thereto, sets forth the terms and conditions for the settlement of the Action; (ii) approving the form of Class Notice, attached as Exhibit D to the Settlement Agreement; and (iii) scheduling a date for the Fairness Hearing, pursuant to Federal Rule of Civil Procedure 23(e), for the Court to consider and determine whether to approve the terms of the Settlement Agreement as fair, reasonable, and adequate; and

1 Capitalized terms not defined herein shall have the meaning ascribed to them in the Settlement Agreement submitted to the Court contemporaneously with this proposed order.
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WHEREAS, this Court has read and considered the Settlement Agreement and the exhibits attached thereto and the Joint Motion to Preliminarily Approve Settlement, Approve Class Notice, and Schedule Fairness Hearing; and
WHEREAS, it preliminarily appears to this Court that the class representatives and class counsel have adequately represented the class; that the Settlement Agreement is the product of extensive, arm’s length negotiations; and that the Settlement Agreement is fair, reasonable, and adequate considering the costs, risks, and delay of trial and appeal.
IT IS HEREBY ORDERED as follows: 1. This Court has jurisdiction over the subject matter of this Action, and the Parties to the
Settlement Agreement agreed to submit to the jurisdiction of the Court for purposes of implementing and enforcing the settlement embodied in the Settlement Agreement. 2. The Court does hereby preliminarily approve the Settlement Agreement and the settlement set forth therein, including all provisions therein and exhibits attached thereto, subject to further consideration at the Fairness Hearing described below. 3. A Fairness Hearing shall be held before this Court on ____________, 2021, at ______.m. at the United States District Court for the District of Massachusetts, One Courthouse Way, Boston, MA 02210, to: (i) determine whether the Settlement Agreement, inclusive of all terms and conditions set out therein, is fair, reasonable, adequate, in the best interests of the Class Members, and should be approved by the Court; (ii) hear and rule on any objections by Class Members to the Settlement Agreement; and (iii) determine whether the Court should enter the final judgment and order dismissal of this Action as described in the Settlement Agreement. The Court reserves the right to hold the Fairness Hearing telephonically or by other virtual means.
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4. The Court reserves the right to adjourn the date of the Fairness Hearing or modify any other dates set forth herein without further notice to Class Members, and retains jurisdiction to consider all further applications arising out of or connected with the settlement.
5. The Court approves, as to form and content, the Class Notice attached to the Settlement Agreement as Exhibit D and finds that the dissemination of the Notice to all Class Members at their last known address meets the requirements of Federal Rule of Civil Procedure 23, the United States Constitution, and other applicable law, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons entitled thereto.
6. Not later than two (2) calendar days following entry of this order, Defendant’s counsel shall provide Plaintiffs’ counsel with the last known address of each of the individuals covered by the proposed settlement.
7. Not later than three (3) calendar days following entry of this order, Plaintiffs’ counsel shall effectuate Notice on all Class Members.
8. Not later than fourteen (14) calendar days prior to the Fairness Hearing, Plaintiffs’ counsel shall serve on Defense counsel and file with the Court proof, by affidavit or declaration, of mailing the Class Notice to all Class Members.
9. All papers in support of this settlement shall be filed with the Court and served not later than fourteen (14) calendar days following the issuance of this Order. The Parties shall file with the Court and serve responses to any objections not later than five (5) calendar days following the allowed period of time for the submission of objections.
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10. Any Class Member may object to the Settlement Agreement and may also (but need not)
appear in person or through counsel at the Fairness Hearing; provided, however, no Class
Member or any other person or entity shall be heard or entitled to contest such matters
unless that person has fully complied with the terms set out herein. To object, a Class
Member must submit copies of: (a) a written statement identifying the Class Member’s
name, address, telephone number, and signature, and, if represented by counsel, the name,
address, and telephone number of counsel; (b) a written statement explaining the Class
Member’s objection and the reasons for such objection; and (c) any documentation in
support of such objection. Any objection shall not exceed twenty-five (25) pages in length.
If the Class Member wishes to appear at the Fairness Hearing, they must also include a
statement of intention to appear at the Fairness Hearing. Such matters must be filed with
the Clerk of the United States District Court for the District of Massachusetts and
additionally sent by first class mail to the following addresses and postmarked no later
than fourteen (14) days after the date of this Order, which shall appear on the Class Notice:
Thomas Kanwit United States Attorney’s Office District of Massachusetts One Courthouse Way, Suite 9200 Boston, MA 02210 Counsel for Defendant
Oren Sellstrom Lawyers for Civil Rights 61 Batterymarch Street, Fifth Floor Boston, MA 02110 Counsel for Plaintiffs
Sameer Ahmed Harvard Immigration and Refugee Clinical Program 6 Everett Street Cambridge, MA 02138
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Appellate Counsel for Class Members With Appellate Proceedings 11. Any person who fails to object in the manner described above shall be: (i) deemed to have
waived any objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of the Settlement Agreement; (ii) barred from raising such objection in this Action; and (iii) bound by the final order approving the Settlement Agreement from this Court. A Class Member objecting or otherwise requesting to be heard at the Fairness Hearing shall be deemed to have submitted to the jurisdiction of the Court with respect to the objection or request to be heard and the subject matter of the Settlement Agreement, including, but not limited to, enforcement of the terms of the Settlement Agreement. 12. Any Class Member may enter an appearance at the Fairness Hearing, individually or through counsel of his or her own choice, at his or her own expense. If any Class Member chooses to hire an attorney at his or her own expense, that attorney must file a notice of appearance with the Court and serve it on Plaintiffs’ Counsel and Defense Counsel postmarked no later than twenty-four (24) hours prior to the Fairness Hearing. If that attorney does not timely enter an appearance, the Class Member will be represented by Plaintiffs’ Counsel. 13. Pending final determination of whether the Settlement Agreement should be approved, all proceedings in the Action and all further activity between the Parties regarding or directed toward the Action, save for those activities and proceedings relating to the Settlement Agreement, shall remain stayed. 14. The Court may approve the Settlement Agreement, with such modifications as may be agreed to by the Parties, if appropriate, without further notice to Class Members.
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15. All Class Members shall be bound by all orders, determinations, and judgments in the Action concerning the Settlement Agreement, whether favorable or unfavorable to Class Members.

IT IS SO ORDERED. Dated:_______________

_____________________ Hon. William G. Young United States District Judge

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EXHIBIT B

Case 1:20-cv-10617-WGY Document 398-2 Filed 04/06/21 Page 1 of 3
Access Restricted to Case Participants Only

Case 1:20-cv-10617-WGY Document 398-2 Filed 04/06/21 Page 2 of 3
Access Restricted to Case Participants Only

Case 1:20-cv-10617-WGY Document 398-2 Filed 04/06/21 Page 3 of 3
Access Restricted to Case Participants Only

EXHIBIT C

Case 1:20-cv-10617-WGY Document 398-3 Filed 04/06/21 Page 1 of 1
TO: Salem Probate Court RE: Janito De Carvalho Case #ES19W1162WD FROM: Immigration and Customs Enforcement and Bristol County Sheriff’s Office DATE: March 7, 2021 To Whom It May Concern: Immigration and Customs Enforcement (ICE) and Bristol County Sheriff’s Office (BCSO) write regarding Janito De Carvalho, a person currently civilly detained at Bristol County House of Correction (BCHOC). Counsel for Mr. De Carvalho has informed us that on or about December 21, 2020 Mr. De Carvalho had a court date scheduled on a family law matter (Case #ES19W1162WD). Mr. De Carvalho was, at that time, detained at BCHOC and therefore was unable to attend the scheduled hearing in-person or electronically. Counsel for Mr. De Carvalho has informed us that subsequently the matter was dismissed. We take no position on the merits of his case in that matter, nor on any attempts he may be making to reopen or relitigate that matter. Thank you for your attention to this matter.
Sincerely,
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EXHIBIT D

Case 1:20-cv-10617-WGY Document 398-4 Filed 04/06/21 Page 1 of 6

ATTENTION: YOUR RIGHTS MAY BE AFFECTED BY A PROPOSED SETTLEMENT IN THE SAVINO CLASS ACTION
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(e) YOU ARE NOTIFIED AS FOLLOWS:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs, v. STEVEN J. SOUZA,

Case No. 1:20-cv-10617 WGY

Respondent-Defendant.

Notice of Proposed Class Action Settlement Savino Et Al V. Hodgson Et Al., U.S.D.C. Mass., No. 1:20cv10617
You have been identified as a class member who benefits from a proposed settlement of the case Savino v. Hodgson, a class action brought on behalf of yourself and other individuals who are or were civil immigration detainees held at the Bristol County House of Corrections and C. Carlos Carreiro Immigration Detention Center in North Dartmouth, Massachusetts. A full copy of the proposed settlement can be found at www.lawyersforcivilrights.org. The most important parts of the proposed settlement contain several terms, including the following:
• Immigration and Customs Enforcement (“ICE”) will ensure that certain class members
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Case 1:20-cv-10617-WGY Document 398-4 Filed 04/06/21 Page 2 of 6
who are currently released on bail by Order of Judge Young remain released following
entry of this Agreement and that their conditions of release are altered such that they
are not subject to any curfew or home confinement restrictions or any GPS or other
form of electronic monitoring. ICE will ensure these class members will not be
arrested or re-detained but for “Good Cause,” which is limited to a material violation
of the terms and conditions of a class member’s order of recognizance or supervision.
This protection will remain in place for one year from the date of execution of the
signed Settlement Agreement. ICE may re-detain class members to effectuate a final
order of removal, but only after good faith consideration of that individual person’s
circumstances and only after ICE has determined whether the option of self-removal
and/or prior notice (as opposed to re-arrest) is appropriate for that individual. The
individuals obtaining this relief are:
• Al Amiri, Salim • Almanzar, Juan • Candelario-Echegoyen, Hugo • Carangui, Carlos • Castillo-Malpica, Gabriel • Corleto, Kevin • Cruz Soares, Geraldo • De Jesus Concepcion, Angela • Ferreira, Pamlar • Figueroa Morales, Julio • Hussein, Hussien • James, Andrea • Jaramillo-Perez, Esteban • Jaramillo-Quiroz, Hector • Joseph, Desmond • Kita Tshimanga, Antoni • Mahadeo, Kavon • Maney Lal, Neved Bai • Maria De Oliveira, Robson • Medeiros Neves Junio, Julio • Miranda-Castillo, Luis • Montes-Santos, Pascual
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• Nikiforidis, Georgios • Peguero-Vasquez, Victor • Ramirez-Maldonado, Ranferi • Rojas-Ceballos, Juan • Sanchez Lopez, Victor • Smith, Donovan • Thomas, Joko • Thomas, Akeim • Urbina Rivas, Henry • Velasquez-Hernandez, Oscar
• ICE will release certain class members from detention pursuant to the Settlement
Agreement. Those class members shall quarantine for a period of fourteen (14) days
and thereafter shall not be subject to any curfew or home confinement restrictions as
part of the conditions of their release. Those class members may be subject to
electronic monitoring at the discretion of Immigration and Customs Enforcement
(“ICE”). ICE will ensure these class members will not be arrested or re-detained but
for “Good Cause,” which is limited to a material violation of the terms and conditions
of a class member’s order of recognizance or supervision. This protection will remain
in place for one year from the date of execution of the signed Settlement Agreement.
ICE may re-detain class members to effectuate a final order of removal, but only after
good faith consideration of that individual person’s circumstances and only after ICE
has determined whether the option of self-removal and/or prior notice (as opposed to
re-arrest) is appropriate for that individual. The individuals obtaining this relief are:
• Augustin, Smith • Kayitare, Fred • Wafula, Lloyd • Ixcuna-Lucas, Miguel • Guallan-Tixi, Diego • Gomes, Marcio
• ICE will present to certain class members the option to transfer out of the Bristol
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County House of Correction to another facility within the Boston Area of Responsibility. After ICE provides Plaintiff’s counsel with alternative locations of detention, individuals will have five (5) days from the date Plaintiffs’ counsel discusses that option with the class member by phone to decide whether to exercise their option to transfer, or to remain at BCHOC. Class members who choose to exercise this transfer option shall inform Plaintiffs’ counsel, who will relay the information to ICE and BCHOC. The individuals obtaining this relief are:
• Fernandes, Joao Lima • Da Graca, Aires • Lewis, Conroy • Amado, Joao • De Carvalho, Janito • Mullings, Terrano • Ali, Liban
• ICE agrees that individual class members Joao Fernandes and Janito De Carvalho will
be provided specific relief as follows: ICE will agree to join in a motion to reopen at the Board of Immigration Appeals. ICE will agree to send a letter to the Salem Probate Court in regard to Mr. De Carvalho’s motion to reopen his family law matter within two weeks of Final Approval and to make Mr. De Carvalho available for family court proceedings provided ICE or BCHOC is given notice thereof.
• Upon Final Approval of the Settlement, Plaintiffs will agree to dismiss with prejudice
the following pending appeal: Case No. 20-1626.
• Plaintiffs will release and forever discharge Defendant and ICE from the habeas and
Rehabilitation Act claims alleged in the Complaint in this case. However, no class member named in the settlement agreement will waive, dismiss, or release any claim arising out of their detention, including without limitation claims under the Massachusetts
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Tort Claims Act, the Federal Tort Claims Act, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. Class members will also retain their right to file individual habeas claims seeking release from detention on any grounds that are not expressly raised in the Complaint. Before the settlement can become final, it must be approved by the Court. The U.S. District Court will review the proposed settlement and any objections from class members at a hearing (“Fairness Hearing”) on ________ at _________. Once the U.S. District Court approves the settlement at the Fairness Hearing, the claims alleged in the Complaint will be dismissed, and you will be bound by the terms of the Settlement Agreement, as ordered by the Court. If you would like more information about the proposed settlement, please contact Plaintiffs’ attorneys, care of:
Oren Sellstrom Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110 If you want to object to the proposed settlement, you must send your objection in writing, by no later than [XXX, 2021 (date two weeks after Preliminary Approval Order)]. Any objection must include: (a) a written statement identifying the class member’s name, address, telephone number, and signature, and, if represented by counsel, the name, address, and telephone number of counsel; (b) a written statement explaining the class member’s objection and the reasons for such objection; (c) any documentation in support of such objection; and (d) whether you intend to appear at the Fairness Hearing. Any objection shall not exceed twentyfive (25) pages in length.
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Any objection must be filed with the Clerk of the United States District Court for the
District of Massachusetts and additionally sent by first class mail to the following addresses and
postmarked no later than [XXX, 2021 (date two weeks after Preliminary Approval Order)]:
Thomas Kanwit United States Attorney’s Office District of Massachusetts One Courthouse Way, Suite 9200 Boston, MA 02210 Counsel for Defendant
Oren Sellstrom Lawyers for Civil Rights 61 Batterymarch Street, Fifth Floor Boston, MA 02110 Counsel for Plaintiffs
Sameer Ahmed Harvard Immigration and Refugee Clinical Program 6 Everett Street Cambridge, MA 02138 Appellate Counsel for Class Members With Appellate Proceedings

Dated:

__________________ Hon. William G. Young United States District Court Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs, v. STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT WHEREAS, the above-captioned matter is pending before this Court as a certified class action (the “Action”1); WHEREAS, the Parties made an application, pursuant to Federal Rule of Civil Procedure 23(e), for an order: (i) preliminarily approving the Settlement Agreement dated [XX, XX, XXXX], which, together with the exhibits annexed thereto, sets forth the terms and conditions for the settlement of the Action; (ii) approving the form of Class Notice, attached as Exhibit D to the Settlement Agreement; and (iii) scheduling a date for the Fairness Hearing, pursuant to Federal Rule of Civil Procedure 23(e), for the Court to consider and determine whether to approve the terms of the Settlement Agreement as fair, reasonable, and adequate; and WHEREAS, this Court issued a Preliminary Approval Order, approved the form of Class Notice, and held a Fairness Hearing on [XX, XX, XXXX], see [ECF No. XXX]; and
1 Capitalized terms not defined herein shall have the meaning ascribed to them in the Settlement Agreement attached hereto as Exhibit 1.
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WHEREAS, this Court has duly considered the arguments in favor of the Settlement Agreement and any objection properly submitted in opposition to the Settlement Agreement;
This Court hereby overrules any and all objections filed in opposition to the Settlement Agreement and finds the Settlement Agreement, inclusive of all terms and conditions set out therein, attached hereto as Exhibit 1, to be fair, reasonable, and adequate, because:
1. Class Members were adequately represented by class representatives and Plaintiffs’ counsel;
2. The Settlement Agreement was the product of arm’s-length negotiations; 3. The Settlement Agreement provides Class Members with adequate relief; and 4. The Settlement Agreement treats Class Members equitably. THEREFORE, the settlement of this Action pursuant to the terms and conditions of the Settlement Agreement is hereby approved pursuant to Fed. R. Civ. P. 23(e) and shall be binding on all parties to the Settlement Agreement: the Class Members, Defendant, and Immigration and Customs Enforcement (“ICE”). The terms, conditions, and releases as set forth in the Settlement Agreement are hereby effectuated.

IT IS SO ORDERED.

Dated:_______________

_____________________ Hon. William G. Young United States District Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES, and all those similarly situated,
Petitioners-Plaintiffs,
v. STEVEN J. SOUZA,
Respondent-Defendant.

Case No. 1:20-cv-10617 WGY

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTION TO PRELIMINARILY APPROVE SETTLEMENT, APPROVE CLASS NOTICE, AND SCHEDULE FAIRNESS HEARING Plaintiffs and Defendant, pursuant to Fed. R. Civ. P. 23(e), hereby respectfully request
that the Court enter an order substantially in the form of the Proposed Order attached to the Settlement Agreement filed concurrently herewith; (2) approving the parties’ proposed notice to members of the class (“Notice”) (Exhibit D to Settlement Agreement); and, (3) scheduling a fairness hearing (“Fairness Hearing”), at which the parties will ask the Court to issue final approval of the Settlement Agreement.
This case began approximately one year ago, as the COVID-19 pandemic was in its early stages. Plaintiffs filed a Petition for Writ of Habeas Corpus and a Complaint for Declaratory and Injunctive Relief (the “Complaint”), alleging Plaintiffs were subject to imminent risk of contracting and suffering from COVID-19 as a result of their detention in the Bristol County House of Correction (“BCHOC”), and seeking release from detention. Defendant denied and continues to deny these allegations. Defendant believes that it followed all available guidance from the Centers for Disease Control and the Massachusetts Department of Health regarding the
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COVID-19 pandemic. Plaintiffs disagree. The Court subsequently certified a class of Plaintiffs, ordered a number of immigration detainees to be admitted to bail, and entered a preliminary injunction order that, inter alia, limited new admissions to the facility (the “Preliminary Injunction”). Discovery commenced, and a trial date of September 2021 has been proposed.
In January 2021, the parties entered into mediation before Chief Magistrate Judge Page Kelley. U.S. Immigration and Customs Enforcement (“ICE”) also participated in this mediation. Plaintiffs, Defendant, and ICE (collectively “the Settling Parties”) have now reached an agreement to resolve this litigation in its entirety.
If approved, the settlement will provide various forms of relief to Class Members, as detailed infra and in the accompanying Settlement Agreement.1 Briefly, the Settlement Agreement provides that: (a) Class Members currently released on bail will remain free of detention, with their bail conditions modified and subject to certain protections against rearrest/re-detention; (b) certain Class Members will be released, under specified conditions; (c) all Class Members who remain detained following these releases will be offered an option to transfer from BCHOC to a different ICE facility; (d) two Class Members who will remain detained will be provided relief particular to their individual circumstances; (e) related Appellate Proceedings will be dismissed; and (f) the Preliminary Injunction will be dissolved, allowing Defendant and ICE to repopulate BCHOC. Following provision of the above relief, Plaintiffs will dismiss their Complaint and waive any claim for attorneys’ fees and costs.
1 The description in this paragraph, and other descriptions in this memorandum, are intended only as summaries of the Settlement Agreement provisions. The exact terms of the settlement are set forth in the Settlement Agreement itself; to the extent that there are any differences between the descriptions herein and the Settlement Agreement, the latter controls. All capitalized terms not defined herein shall have the meaning ascribed to them in the Settlement Agreement.
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As explained below, the settlement far exceeds the threshold for both preliminary and final approval of a class action. Accordingly, the parties respectfully request that this Court grant this motion for Preliminary Approval.
I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs filed a Petition for Writ of Habeas Corpus and a Complaint for Declaratory and
Injunctive Relief in this Action on March 27, 2020 (“Complaint”). ECF No. 1. The Complaint alleged that Plaintiffs were subject to imminent risk of contracting and suffering from COVID19 as a result of their detention, in violation of their Fifth Amendment Right to Due Process and Section 504 of the Rehabilitation Act. On April 8, 2020, the Court granted Plaintiffs’ Motion to Certify a Class. ECF No. 64. On May 7, 2020, and by written order on May 12, 2020, the Court granted Plaintiffs’ Motion for a Preliminary Injunction. ECF Nos. 168, 175. The Preliminary Injunction ordered: (1) testing for all immigration detainees and for all BCHOC staff who come into contact with immigration detainees and (2) a bar on new admittees to BCHOC. ECF No. 175 at 33-34; see also ECF No. 206 (modifying Preliminary Injunction to clarify BCHOC staff testing was voluntary); ECF No. 225 (denying reconsideration of Preliminary Injunction); ECF No. 244 (modifying Preliminary Injunction to allow transfer from BCHOC criminal wing to immigration wing upon court approval).
Throughout April and May 2020, the parties also engaged in a process through which the Court assessed each individual class member’s application for bail. This process led to the release of 43 individuals on bail. ECF Nos. 44, 54, 55, 73, 76, 86, 90, 107, 135, 147. These released individuals were subject to strict conditions of release including a 14-day quarantine, followed by house arrest, with discretion for ICE to use electronic monitoring. See ECF Nos. 64
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at 9 n.6, 73. Over the last year, the Court has ordered modifications to these bail conditions on both an individual and group-wide basis. See ECF Nos. 298, 302, 304, 317, 318, 354.
The conditions at BCHOC have changed since Plaintiffs brought their suit in March 2020. Through the bail process described above and the Court’s limitation on new admittees, together with releases, transfers, and removals executed by ICE in the ordinary course, the population of BCHOC has fallen from 148 at the outset of the litigation to 7 today. BCHOC has also represented that it has offered the COVID-19 vaccine to all immigration detainees who remain detained.
In December 2020, the parties agreed to pause the litigation and enter mediation, and the case was referred to Chief Magistrate Judge Page Kelley on January 11, 2021. Decl. of Mike Brown ¶ 2; ECF No. 356. Starting on January 22, 2021, the parties engaged in four formal mediation sessions with Magistrate Judge Kelley. Decl. of Mike Brown ¶ 3. These sessions included Plaintiffs’ counsel and counsel for BCHOC and ICE. Decl. of Mike Brown ¶ 4. Plaintiffs, BCHOC, and ICE also communicated frequently outside of the formal mediation sessions to facilitate a resolution to the litigation. Decl. of Mike Brown ¶ 5.
The Settling Parties have now reached an agreement on the terms of a proposed settlement to resolve each of the claims alleged in the Complaint.2 II. THE PROPOSED SETTLEMENT
The Class Members, as that term is defined and used for the purposes of the Settlement Agreement, are specified in Section I (1) of the Settlement Agreement. The Settling Parties have agreed to the terms summarized herein and as detailed in the Settlement Agreement.
2 The Settling Parties express their gratitude and appreciation to Chief Magistrate Judge Kelley for her assistance in helping reach this Settlement Agreement.
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Class Members who are currently released on bail by order of this Court will remain released following Final Approval of the Settlement Agreement. In addition, the parties are jointly moving, concurrently herewith, for the modification of the release conditions of the thirty-two (32) individuals currently on bail. That modification will include the removal of any curfew or home confinement restrictions, inclusive of the restrictions imposed by the Court’s December 22, 2020 Order. See ECF No. 354 (modifying release conditions to permit individuals to leave their homes during a prescribed time window each day for delineated purposes). In addition, the modification will include the removal of electronic monitoring for these Class Members. To the extent the Court has not already approved these modifications via the concurrently-filed motion, they will become effective upon Final Approval.
Six (6) Class Members who were until recently held at BCHOC will be released pursuant to this Settlement Agreement.3 Those individuals will be subject to the same conditions as those individuals currently on bail by order of this Court, with the modifications described above, with the exception that ICE, in its discretion, will be able to apply electronic monitoring to these individuals.
Seven (7) Class Members who are currently held at BCHOC, and who will not be released, will be provided other relief in the form of a transfer option. Defendant will provide Plaintiffs’ counsel with a list of alternative detention locations within fourteen (14) days of execution of the Agreement and will provide counsel with phone access to these Class Members. Class Members will have five (5) days from the date of that phone access to exercise their right to transfer from BCHOC to another facility within the Boston Area of Responsibility.
3 On March 25, 2021, Defendant released these individuals from detention, in anticipation of this Agreement being filed. Continued release of these individuals is conditioned on the Court granting Final Approval.
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Two (2) Class Members who will receive the transfer option described above will additionally receive individualized relief. First, ICE will join a motion by Joao Fernandes to reopen before the Board of Immigration Appeals. In return, Mr. Fernandes will dismiss his currently pending petition for review in the First Circuit and will agree not to file any habeas petition alleging unlawful prolonged detention unless his reopened removal proceedings before the Board of Immigration Appeals extends beyond one year. Second, Defendant or ICE will send a letter to the Salem Probate Court supporting Janito De Carvalho’s motion to reopen his case in that court, which was closed due to his failure to appear while detained at BCHOC. Defendant and ICE further agree to make Mr. De Carvalho available for hearings in that matter if it is reopened and Defendant and ICE are provided notice thereof.
Under the terms of the Settlement Agreement, ICE will not arrest or re-detain any released Class Member but for Good Cause, which is defined in the Settlement Agreement as a material violation of the terms and conditions of a Class Member’s order of recognizance or supervision. Further, except as expressly delineated in the Settlement Agreement, re-arrest or detention will be subject to Field Office Director or Special Agent in Charge advance approval. The Settlement Agreement provides for limited exceptions to the above re-arrest conditions to effectuate a final order of removal.
Plaintiffs have agreed, through the Settlement Agreement, to dismiss without prejudice one appellate proceeding, Case No. 20-1626.
The Court’s Preliminary Injunction, which inter alia limits new admissions to BCHOC, currently remains in place. Pursuant to the Settlement Agreement, that injunction shall dissolve upon Final Approval of the settlement.
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Plaintiffs will release and forever discharge Defendant and ICE from the habeas and Rehabilitation Act claims expressly alleged in the Complaint. Class Members will retain their right to file individual habeas claims seeking release from detention on any grounds that were not expressly raised in the Complaint, except as set forth specifically in the Settlement Agreement for Class Member Joao Fernandes.4
In addition to the above, Plaintiffs and Plaintiffs’ counsel have agreed to waive any and all claims to the recovery of attorneys’ fees and costs in connection with this Action if Final Approval is ordered by this Court and the relief contemplated by the Settlement Agreement is effectuated. III. THE COURT SHOULD GRANT PRELIMINARY APPROVAL
Preliminary approval of a class action settlement is appropriate under Rule 23 of the Federal Rules of Civil Procedure where the Court finds that it “will likely be able to” approve the proposed settlement. Fed R. Civ. P. 23(e)(1)(B)(i). The Rule authorizes final approval of a settlement upon a finding that the settlement is “fair, reasonable, and adequate” after considering specified procedural and substantive factors, including whether (A) “the class representatives and class counsel have adequately represented the class”; (B) “the proposal was negotiated at arm’s length”; (C) the relief is adequate; and (D) “the proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(A)-(D).
This Settlement Agreement satisfies these factors. First, the class in this case is adequately represented by an experienced team of attorneys and law student interns from Lawyers for Civil Rights, Wilmer Cutler Pickering Hale and Dorr LLP, and the Worker and
4 Aside from the habeas and Rehabilitation Act claims expressly alleged in the Complaint, no Class Member will waive, dismiss, or release any claim arising out of their detention, including without limitation claims under the Massachusetts Tort Claims Act, the Federal Tort Claims Act, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983.
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Immigrant Rights Advocacy Clinic at Yale Law School.5 Fed. R. Civ. P. 23(e)(2)(A). The Court recognized class counsel as adequate in certifying the class and finding that Plaintiffs met the standards of Rule 23. ECF No. 64 at 25. Class counsel have zealously represented the interests of the class, including securing a preliminary injunction for the class; filing numerous motions and bail applications for both the immigration detainees who remained detained and those who were released; and conducting written and oral discovery on Defendant’s policies and practices relating to the COVID-19 pandemic to prepare for trial and advocate for those still detained during the course of the lawsuit. As a result, counsel had an “adequate information base” in negotiating the Settlement Agreement. Fed. R. Civ. P. 23(e)(2) advisory committee note.
Second, the Settlement Agreement is the product of serious, informed, arm’s length negotiations. Fed. R. Civ. P. 23(e)(2)(B). The Settling Parties have reached agreement after almost a year of litigation and after counsel participated in four formal mediation sessions with Magistrate Judge Kelley. The Settling Parties also engaged in extensive back-and-forth negotiations about the specific provisions included in the Settlement Agreement, both over videoconference and email. All Settling Parties are represented by experienced counsel and have been adequately represented throughout the litigation and the settlement negotiations.
Third, the relief is adequate. Fed. R. Civ. P. 23(e)(2)(C). Each Class Member is afforded relief through the Settlement Agreement that addresses the claims in the Complaint, whether through release, through an option to transfer to another facility, or through the opportunity to remain on bail with relaxed bail conditions. The Settlement Agreement guarantees this relief while removing the risk inherent in going to trial. It also guarantees relief at a date certain – something of vital importance given the ongoing risk and changing nature of the coronavirus
5 Members of the class were also represented by the Harvard Immigration and Refugee Clinical Program in their related Appellate Proceedings.
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pandemic and measures to combat it. In exchange, Class Members are settling only the claims raised in the Complaint. The relief contemplated by the Settlement Agreement is meaningful, has the support of all Settling Parties, and should be endorsed by this Court.
Fourth, the Settlement Agreement does not have any obvious deficiencies and does not improperly grant preferential treatment to segments of the class. Fed. R. Civ. P. 23(e)(2)(D). While each Class Member is not afforded identical relief under the Settlement Agreement, any difference is based on objective differences in Class Members’ individual circumstances and on different outcomes of the individualized review conducted of each individual Class Member’s eligibility for the different forms of relief, and not because the process was applied more equitably to some as opposed to others. Each Class Member is being provided meaningful relief that addresses the claims in the Complaint. The forms of relief were duly considered for each Class Member, and no member was given preferential treatment. This objective approach supports the adequacy of the settlement. See Bussie v. Allmerica Fin. Corp., 50 F. Supp. 2d 59, 75 (D. Mass. 1999) (“The Court . . . finds that any differences in the nature and value of the benefits received by Class members reflect the Settlement’s fairness insofar as they are rationally based on objective differences in the positions of Class members. . . .”). IV. THE COURT SHOULD APPROVE THE NOTICE PLAN AND SET A FINAL
APPROVAL HEARING The Settlement Agreement also provides for a notice plan that is reasonably calculated to reach absent Class Members, advise them of the terms of the proposed settlement, and provide the opportunity to present any objections. Fed. R. Civ. P. 23(e)(1)(B). Although individual notice of a proposed class settlement is not required for classes certified under Rule 23(b)(2), the Settling Parties believe that individual notice to each Class Member is appropriate in this case. The Settling Parties have agreed to issue written notice to Class Members by having Plaintiffs
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send the Notice, as approved by the Court, through First-Class mail to all Class Members. The

Settling Parties agree that the language in the Notice accurately portrays the Settlement

Agreement and that, through Plaintiffs’ counsel, the Settling Parties will be able to effectuate

Notice within the timeline agreed to and articulated in the Settlement Agreement and attached

Proposed Order. The Notice sets forth the main terms of the Settlement Agreement, explains to

Class Members how to object and the deadline for doing so, and informs Class Members how

they can obtain more information about the Settlement Agreement. The proposed notice plan

will ensure that all Class Members receive reasonable notice of the Settlement Agreement.

To expedite the resolution of this matter while still allowing adequate time for any Class

Member to file an objection, the parties further request that the Court schedule a Fairness

Hearing no later than twenty-eight (28) days from the filing of this Motion.

V. CONCLUSION

WHEREFORE, Plaintiffs and Defendant respectfully request that the Court preliminarily

approve the Settlement Agreement by entering an order substantially in the form of the Proposed

Order submitted herewith.

April 6, 2021

Respectfully submitted,

MARIA ALEJANDRA CELIMEN SAVINO, JULIO CESAR MEDEIROS NEVES

By their attorneys:

/s/ Oren Sellstrom Oren Sellstrom (BBO #569045) Lauren Sampson (BBO #704319) Ivan Espinoza-Madrigal† Lawyers for Civil Rights 61 Batterymarch Street, 5th Floor Boston, MA 02110

Emily Jo Coady, Law Student Intern✦ Grace Choi, Law Student Intern Kayla Crowell, Law Student Intern Juan Fernando Luna Léon, Law Student Intern✦ Siyuan Sonia Qin, Law Student Intern✦
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(617) 988-0606 osellstrom@lawyersforcivilrights.org

Fernando Quiroz, Law Student Intern✦ Isir Said, Law Student Intern✦ Michael Wishnie (BBO# 568654) Sara Zampierin† Jerome N. Frank Legal Svcs. Org. P.O. Box 209090 New Haven, CT 06520 Phone: (203) 432-4800 michael.wishnie@ylsclinics.org
Lisa Pirozzolo (BBO #561922) John Butts (BBO #643201) Felicia Ellsworth (BBO #665232) Nicole M.F. Dooley (BBO #690539) Annaleigh Curtis (BBO #696165) Michael Brown (BBO #695276) Andy O’Laughlin (BBO #691836) Rama Attreya (BBO #699395) Gary Howell-Walton (BBO #705470) Mikayla C. Foster (BBO #705360) Elizabeth E. Driscoll (BBO #705302) Asma Jaber (BBO #707322) ** Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street, Boston, MA 02109 Mike.Brown@wilmerhale.com

† Admitted pro hac vice * Motion for law student appearance pending. ✦ Motion for law student appearance forthcoming. ** Pro hac vice forthcoming
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STEVEN SOUZA By his attorney, NATHANIEL B. MENDELL Acting United States Attorney District of Massachusetts /s/ Thomas E. Kanwit THOMAS E. KANWIT Assistant U.S. Attorney 1 Courthouse Way, Suite 9200 Boston, MA 02210 Thomas.kanwit@usdoj.gov (617) 748-3100
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Case 1:20-cv-10617-WGY Document 399 Filed 04/06/21 Page 13 of 13 CERTIFICATE OF SERVICE
I hereby certify that, on April 6, 2021 a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of this court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system. Date: April 6, 2021 /s/__Oren M. Sellstrom________ Oren M. Sellstrom
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